[JURIST] A representative for the US nursing home industry urged members of Congress Wednesday not to pass legislation that would eliminate the arbitration clauses which are typically part of admission contracts to nursing homes. In a joint meeting [recorded audio] between the Judiciary Subcommittee on Antitrust, Competition and Consumer Rights and the Special Committee on Aging [official websites], Kelley Rice-Schild, a representative of the American Health Care Association (AHCA) [official website] testified [ACHA press release] that such legislation would undermine the Federal Arbitration Act (FAA) [USC Title 9 text], while arbitration is more efficient and could enable patients to retain a larger part of any financial settlement. However Sen. Herb Kohl (D-WI) [official website], who along with Sen. Mel Martinez (R-FL) [official website] introduced the Fairness in Nursing Home Arbitration Act of 2008 [S 2838 materials] in April, argued [press release]:

Typically, admissions agreements are presented on a take-it-or-leave-it basis. Residents have few choices because they require immediate admission or because there are no other facilities in the area...[A]s a result, whether or not they understand the arbitration provision, [people] often feel compelled to sign in order to ensure that their loved one will be admitted.

[JURIST] The Federal Bureau of Investigation (FBI) [official website] Thursday announced that more than 400 people had been indicted [press release] in connection to what has been termed the US "sub-prime mortgage collapse." The vast majority of the indictments involved fraud related to individual mortgages, with the FBI focusing on lending fraud, foreclosure rescue scams and mortgage-related bankruptcy schemes, which account for more than $1 billion in losses.

Lending fraud frequently involves multiple loan transactions in which industry professionals construct mortgage transactions based on gross fraudulent misrepresentations about the borrower’s financial status, such as overstating the borrower’s income or assets, using false or fictitious employment records or inflating property values. Foreclosure rescue scams involve criminals who target legitimate homeowners in dire financial circumstances and fraudulently collect fees for foreclosure prevention services or obtain ownership interests in residential properties. Both of these fraudulent mortgage schemes may be furthered by filing bankruptcy petitions that automatically stay foreclosure.

[They] misrepresented or omitted material facts in communications with investors and lenders about a variety of topics, including the financial prospects of the Funds, their opinions regarding the financial prospects of the Funds, their personal investments in the Funds, the Funds' investor redemption requests, the Funds' liquidity picture, and the Funds' exposure to the subprime mortgage market.

[JURIST] The UN Human Rights Council (UNHRC) [official website] Wednesday criticized the government of Myanmar [A/HRC/8/L.12 text, PDF] for its continued human rights abuses and refusal to cooperate with humanitarian groups. The resolution calls on the Myanmar government to free political prisoners, stop recruiting child soldiers and to implement earlier UNHRC resolutions [S-5/1 text, PDF] regarding the country's human rights situation. The Council adopted the measure without a vote and requested a

full, transparent and effective, impartial and independent investigation into all reports of human rights violations, including enforced disappearances, arbitrary detentions, torture and ill-treatment, forced labour and forced displacement and for bringing those responsible to justice.

[JURIST] A US military judge at Guantanamo Bay Thursday set October 8 as the date for the military commission trial of Canadian-born Omar Khadr [DOD materials; JURIST news archive]. Khadr's military defense lawyer Navy Lt. Cmdr. William Kuebler said that judge Col. Patrick Parrish, who replaced Col. Peter Brownback [JURIST news archive] as presiding judge last month, is pushing ahead to complete the trial before President George W. Bush leaves office. Prior to his dismissal, Brownback had refused to set a trial date [JURIST reports] until the US government submitted daily records of Khadr's detention. Kuebler has speculated that Brownback's dismissal was related to his refusal to set a date, but the Pentagon has denied this assertion. Parrish has ordered prosecutors to turn over materials related to Khadr's interrogation at the Bagram air base in Afghanistan, where Khadr was detained before his transfer to Guantanamo [JURIST news archive]. CBC News has more.

Khadr, 21, faces life imprisonment for crimes allegedly committed at the age of 15 while fighting with the Taliban in Afghanistan. He was charged [charge sheet, PDF; JURIST report] in April 2007 with murder, attempted murder, conspiracy and providing material support for terrorism, as well as spying. In April, Brownback ruled [PDF text] that Khadr was not a child soldier when he was captured in Afghanistan. Khadr's lawyers had asked for the case to be dismissed [JURIST report] saying that it violated the Optional Protocol of the UN Convention on the Rights of the Child [text], which gives special protection to children under 18 involved in armed conflicts. Last week, the US Supreme Court ruled enemy combatants can challenge their detention in federal courts [JURIST report], a decision that puts the future of the commission process into doubt.

[JURIST] Chief Justice Royce Lamberth [official profile] of the US Court of Appeals for the District of Columbia held an off-the-record meeting Wednesday with defense lawyers for enemy combatants being held at Guantanamo Bay [JURIST news archive] to discuss court procedures in light of the US Supreme Court's recent opinion in Boumediene v. Bush [text, PDF; JURIST report]. The group reportedly discussed how Guantanamo prisoners' challenges in civilian courts might be affected by the controversial ruling, which determined that terrorism detainees have US habeas corpus rights. The meeting also addressed issues of scheduling, including possible delays in the military commission trials [JURIST news archive] of the detainees. Reuters has more.

Last week's ruling was the not the first time that the Supreme Court has ruled against the government in a case concerning the legal rights of enemy combatants. In June 2006, the Supreme Court held [opinion, PDF; JURIST report] that the military commission system as initially constituted violated both the Uniform Code of Military Justice and the Geneva Convention. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system. The Court's decision was criticized [JURIST report] by US President George W. Bush and Attorney General Michael Mukasey. UN human rights chief Louise Arbour and rights activists praised [JURIST report] the Court for its decision.

[JURIST] Former Serbian chief of state security Radomir Markovic was sentenced to 40 years in prison Thursday for his role in a 1999 assassination attempt on then-Yugoslav opposition leader Vuk Draskovic [BBC profile]. The Supreme Court of Serbia also sentenced ten other individuals, including special police commander Milorad Ulemek [JURIST news archive], for orchestrating a highway crash intended to kill Draskovic. Draskovic survived and later went on to become the Minister of Foreign Affairs for Serbia-Montenegro. AP has more.

The high court tried Markovic after overturning numerous previous convictions related to the 1999 assassination attempt. In 2005, Markovic was among 10 former members of the Slobodan Milosevic [JURIST news archive] regime sentenced to jail [JURIST report] for the assassination plot. Markovic was sentenced to 10 years for covering up the plot. He was originally convicted in 2003 but that verdict was overturned on appeal.

[JURIST] Italy's highest court of appeal, the Court of Cassation [official site, in Italian], Thursday ruled that Italian courts lack jurisdiction to try a US soldier accused of shooting an intelligence agent in Iraq. Last year, Italian prosecutors filed an appeal of a Rome court's dismissal [JURIST report] of the criminal case against US Army Spc. Mario Lozano [defense website] for the alleged 2005 murder of Italian intelligence agent Nicola Calipari [BBC profile; JURIST news archive] and the attempted murders of agent Andrea Carpani and journalist Giuliana Sgrena [BBC profile]. Lozano was tried in absentia [JURIST report] beginning in April last year, but the court accepted defense lawyers' arguments that it lacked jurisdiction [JURIST report], as members of multinational forces in Iraq were each under the sole jurisdiction of their home countries. AP has more.

The Italian agents and journalist were shot while entering a US checkpoint [JURIST report] on the way to the Baghdad airport after the agents secured the release of Sgrena from Iraqi kidnappers. US and Italian officials have failed to agree [JURIST report] on details surrounding Calipari's death. A US investigation cleared US soldiers of wrongdoing, while an Italian probe [JURIST reports] concluded the killing was accidental but found that there were serious miscommunications and confusion about the rules of engagement for checkpoints.

[JURIST] Malaysian rights group Suaram [advocacy website] Thursday published its annual report [PDF text; press release] on the state of human rights in the country, saying that conditions had significantly worsened over the past year. The group cited the country's judicial fixing scandal [JURIST news archive] and lax prosecution of human rights offenders by the Human Rights Commission of Malaysia [official website] as evidence of weak protections in the country. It also criticized the continued use of what it considers arcane preventative detention laws such as the Internal Security Act (ISA) [HRW backgrounder], under which it said more than 70 prisoners, including some human rights protesters [JURIST report], were still being held without charge. The group blames ineffective and unmotivated governmental institutions for the decline, and says it was this ineptitude which lead to the former ruling party's ouster in recent elections. AFP has more.

In May, Amnesty International Malaysia [advocacy website] also issued a release [text] condemning the country's rights record, and called for leaders to take more aggressive action to protect human rights. Earlier this month, Malaysian Law Minister Datuk Zaid Ibrahim [firm profile] said [JURIST report] legal, possibly even constitutional, reforms were needed to safeguard the independence of the country's judiciary. In March, opposition leaders called for the release [JURIST report] of five members of the Hindu Rights Action Force held under the ISA accused of organizing a November street demonstration [TIME report] by thousands of the nation's ethnic Indians in Kuala Lumpur.

[JURIST] The Indonesian Corruption Eradication Commission (KPK) [official website, in Bahasa] began investigating the country's Supreme Court [official website, in Bahasa] Monday for suspected embezzlement [Jakarta Post report]. The Court collects administrative fees from appellants but has so far not accounted for the money. Late last month officials from Indonesian Corruption Watch (ICW) [official website, in Bahasa], an NGO that monitors government organizations for corruption, encouraged a KPK investigation [Jakarta Post report] after the Court again refused to account for its collected fees or to allow for an audit, which the group said violated the Public Finance Management Law. The investigation officially began Monday when KPK officials confiscated Supreme Court documents after the Audit Board of the Republic of Indonesia (BPK) [official website] reported problems with the court's fee-collection records. The investigation is designed to check for such problems by accounting for the $3.4 million the court reportedly collected between January 2007 and March 2008. The KPK also plans to audit court bank accounts. AFP has more.

The Indonesian constitution called for the establishment of the BPK [Art. 23, s. 5 text], designed to report its audits on all government agencies to the House of Representatives. The legislature officially established [Act 5 text, in Bahasa] the agency in 1973, and in 2002 the Indonesian Assembly named the BPK the state's official independent audit department [decree, PDF, in Bahasa]. In 2007 the Supreme Court refused a BPK audit of the Court's administrative accounting records, arguing that the fees were used to cover expenses and were not state revenue. BPK officials responded that money gathered in payment for state services does constitute state revenue. In 2006 World Bank officials called judicial corruption one of the biggest challenges [JURIST report] for Indonesia, and anti-corruption group Transparency International [official website] has since said that the country is perceived as one of the most corrupt [rankings list; regional analysis, PDF] worldwide.

[JURIST] The Vestre Landsret [court website, in Danish], one of the two second-highest appeals courts in Denmark, denied [text, PDF, in Danish] Wednesday an appeal of a 2006 lower court judgment [JURIST report] dismissing a lawsuit concerning caricatures of the Prophet Muhammad [JURIST news archive]. The defamation lawsuit was brought by seven Muslim groups against Jyllands-Posten [newspaper website], a Danish newspaper that printed satirical cartoons depicting [Le Monde slideshow] the Prophet Muhammad, and two of the newspaper's editors. The cartoons, including one which associated the Prophet with terrorism, caused international anger that resulted in wide-spread demonstrations, multiple deaths, the burning of Danish embassy buildings [JURIST reports], boycotts of Danish goods, and violent clashes throughout the Muslim world. The Vestre Landsret agreed with the judgment of the City Court of Aarhus that while some Muslims may be offended by the cartoons, they were an exercise in free speech, and there was no reason to believe the editors intended to insult Muslims. AP has more.

The seven Muslim groups filed the lawsuit in March 2006, following the announcement [text] by Denmark's Director of Public Prosecutions [official website] Henning Fode that the government would not press criminal charges [JURIST report] against the newspaper or its employees. A Jordanian court convicted editors [JURIST report] of two national newspapers in May 2006 and sentenced them to two months' imprisonment for publishing the cartoons. In January, a former newspaper editor in Belarus was sentenced to three years in prison [JURIST report] for reprinting the cartoons in the Zhoda newspaper. In February, Jyllands-Posten reprinted the cartoons, drawing condemnation and protests in Indonesia, Sudan, and Afghanistan [JURIST reports], among other places. Also in February, a tape recording allegedly made by Osama bin Laden was released, threatening retaliation against European Union countries [Reuters report] for reprinting the cartoons.

[JURIST] Thirty-nine accused Darfur [JURIST news archive] rebels appeared before special courts in Sudan to be tried under a 2001 anti-terrorism law Wednesday. The accused allegedly belong to the Justice and Equality Movement (JEM) [group website], which Sudanese officials accuse [AP report] of terrorism, rebellion and conspiring against the constitution. Lawyers for the rebels have expressed skepticism that the special courts, which were established by the nation's chief justice, can be impartial. If convicted, the defendants could face the death penalty. Sudanese security forces arrested more than 100 JEM members [HRW press release; JURIST report] following a May 10 attack on the Sudanese city of Omdurman, in which at least 200 people died. Reuters has more. SUNA has local coverage, in Arabic.

On Tuesday, Human Rights Watch (HRW) released a report [text, PDF; HRW press release] detailing detainee abuse in the wake of the May 10 rebel attack. The report calls on the Sudanese government to identify the prisoners detained in connection with the attack, and to release any detainees who have no connection to rebel activities. Since civil war broke out in the Darfur region in 2003, over 200,000 people have been killed and 2.5 million displaced. Reports by the UNHCHR and the International Committee for the Red Cross [official website] have documented numerous violations of human rights and international humanitarian law [JURIST reports] based on interviews with refugees, rebel groups, and agencies and authorities working in the region.

[JURIST] The US congress voted late Wednesday to override President George W. Bush's veto [JURIST report] of the new Farm Bill [HR 6124 materials]. The override passed easily in both chambers, with votes of 80-14 in the Senate and 317-109 [roll calls] in the House. Bush had vetoed the legislation earlier Wednesday, calling it fiscally irresponsible. The original version of the text sent to Bush for signature last month inadvertently omitted [JURIST report] a section providing for foreign food aid. AP has more.

The future of a landmark discrimination case [NBFA press release; JURIST report] brought by the Virginia-based National Black Farmers Association earlier this month against the US Department of Agriculture (USDA) [official website] depended on the passage of the bill. The legislation includes a provision [AP file report] that expressly permits new claims of improper discrimination in the allocation of USDA resources, including loans, disaster relief, and other resources. The new Farm Bill also reopens the class-action suit to farmers who were left out of a 1999 settlement after missing a filing deadline and thousands more who argue that the terms of the settlement were inadequate.

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [PDF text] Wednesday that employees have a reasonable expectation of privacy in text messages sent on work cell phones. The present case was bought by an Ontario police officer who alleged that his department violated his Fourth Amendment [LII backgrounder] rights by reading his messages; the officer also brought suit against text-messaging service Arch Wireless [parent company website], which released the messages to the department. The court found that if text messages are stored by an outside service, rather than on an employer's own servers, the employer does not have a right to see those messages without the employee's permission. The court also held that Arch Wireless, as an "electronic communication service," had violated the Stored Communications Act [text] by releasing the texts to the department. Considering the privacy implications of the case, the court wrote:

The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. Here, we must first answer the threshold question: Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network? We hold that they do.

[JURIST] South African Archbishop Desmond Tutu [Nobel Prize profile] said [backgrounder] Wednesday that the US Senate should quickly pass a proposed bill [S 2731 text, PDF] designed to combat AIDS, tuberculosis and malaria because it would save lives and encourage other governments to increase their anti-AIDS efforts. The bill would directly support other countries' anti-AIDS efforts and is designed to:

provide a framework to work with international actors and partner countries toward universal access to HIV/AIDS prevention, treatment, and care programs, recognizing that prevention is of particular importance in terms of sequencing.

[JURIST] The US Supreme Court [official website; JURIST news archive] handed down five decisions Thursday, including MetLife v. Glenn [Duke Law backgrounder; JURIST report], in which the Court ruled 6-3 that an employee benefit plan administrator has an illegal conflict of interest under the Employee Retirement Income Security Act [text; US DOL backgrounder] if he has both the authority to pay benefits and to determine employees' eligibility for benefits. The Court found:

In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor's inherent or case-specific importance. The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.

The Plan's "assumptions" that no disabled worker would have continued to work beyond the point at which he was both disabled and pension eligible do not involve age-related stereotypes, but apply equally to all workers regardless of age.

[T]he Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.

[JURIST] Mexico has asked the International Court of Justice (ICJ) [official website] for assistance in stopping the Texas executions of five of its citizens, including Jose Ernesto Medellin [ASIL backgrounder; JURIST news archive], who is scheduled to be executed August 5. In hearings [schedule, PDF] scheduled for Thursday, Mexico will ask the ICJ to rule on its request for provisional measures and to clarify the 2004 ruling in which it held such executions were in violation of international law due to denial of consular assistance. Last month, a Texas court set Medellin's execution date [JURIST report] after the US Supreme Court ruled [JURIST report] in March that President George W. Bush did not have the authority to direct state courts to comply with the ICJ's order for new court hearings. Reuters has more.

Medellin, a Mexican national sentenced to death for raping and murdering two teenage girls, had appealed a Texas Court of Criminal Appeals November 2006 ruling [text; JURIST report] that Bush had "exceeded his constitutional authority" by ordering state court rehearings [JURIST report] for 51 Mexican nationals, including Medellin, convicted in US courts. The president's February 2005 memorandum [text] instructed the Texas courts to follow a March 2004 ICJ decision [materials] that held that Medellin and the other Mexican nationals tried in US courts had been denied their right under the Vienna Convention on Consular Relations [PDF text] to contact the Mexican consulate for legal assistance and that the US was obligated to grant review and reconsideration of their convictions and sentences.

[JURIST] The Swedish parliament Wednesday passed a controversial warrantless wiretapping law [draft text, in Swedish] that gives the country's National Defence Radio Establishment [official website] broad authority to monitor international telephone and electronic communications passing through the country. The bill, which had been rejected Tuesday [JURIST report], passed by a narrow 143-138 margin after last-minute changes made by lawmakers. The changes included a provision for independent oversight of the program, but critics say the revised bill still does not do enough to protect privacy interests. Opposition party members say the program could also be used to intercept domestic communications [press release, in Swedish], and the International Federation of Journalists argued it could compromise source anonymity [press release]. The new law will take effect in January 2009. AP has more. BBC News has additional coverage.

Warrantless wiretaps have been an increasingly controversial topic, as officials struggle to balance civil liberties with security concerns. In February, a Canadian judge ruled [excerpts] that Section 184.4 of the Canadian Criminal Code [text], which allows law enforcement officers to electronically intercept private communications in "exceptional circumstances" without court authorization, is unconstitutional because it violates "the fundamental freedom to be free from unreasonable search and seizure" protected by the Canadian Charter of Rights and Freedoms [text]. In March, the US House of Representatives narrowly passed a controversial bill to amend the Foreign Intelligence Security Act [JURIST news archive] that would extend government power to eavesdrop on individuals within the US under judicial oversight but not grant retroactive immunity to telecommunications companies that had previously allowed the government to eavesdrop on their lines as part of its warrantless wiretapping program [JURIST news archive].

[JURIST] The status of more than 1,000 protesters detained by Chinese authorities during March demonstrations [BBC backgrounder] in Tibet remains unknown, according to an Amnesty International report [text, DOC; press release] released Wednesday. About 370 of the protesters who surrendered to authorities and about 980 arrested in April after the protests have still not been released or charged [Amnesty press release]. Amnesty officials also criticized China for severely censoring media reports on Tibet, blocking international journalists and independent human rights observers from entering the region, and physically abusing detained activists. An Amnesty official said that under Chinese law [text, Administrative Punishment Law of the People's Republic of China], detainees can be held without charge for four years [ITV report]. The Amnesty report called on China to free all detainees who engaged in peaceful protest. AFP has more. Reuters has additional coverage.

Rights groups have criticized China for ongoing human rights violations [HRW materials] targeted at Tibetans, and many call for the total independence [advocacy website] of the currently "semi-autonomous" region. In March, police in China detained 953 people [JURIST report], of whom 403 have been formally arrested, in connection with protests against Chinese rule in Tibet. In April, a Chinese court sentenced 30 people to prison for their roles in the protests. Chinese officials have blamed the exiled Dalai Lama [personal website] for organizing the protests.

[JURIST] Canada classified the World Tamil Movement (WTM) as a terrorist organization Tuesday [Canadian list of terrorist entities], according to comments [press release] by Canadian Public Safety Minister Stockwell Day [official website]. Day characterized the group as a front for the Liberation Tigers of Tamil Eelam (LTTE) [group website; CFR backgrounder], or "Tamil Tigers," stating that there was evidence linking the WTM to LTTE fund raising efforts, and that WTF representatives had elicited donations from Canadian Tamils and transferred funds to Sri Lankan bank accounts controlled by the LTTE. The listing, made pursuant to the Criminal Code of Canada [text], is meant to combat terrorist activities and "support Canada's law-abiding Tamil community." The Canadian government now plans to seize WTM assets and make it illegal for Canadian citizens to donate to the group. CBC has more.

The LTTE [JURIST news archive] argue that the government of Sri Lanka [official website; JURIST news archive] must establish an independent ethnic state for Tamils within the current boundaries of Sri Lanka, a demand the government has rejected since the Tigers began an open rebellion in the 1970s. Canada placed the LTTE on its list of terrorist organizations [Public Safety list] in April 2006, citing the groups attacks on civilians as well as political, economic, religious and cultural targets through the use of terrorist tactics, including suicide bombings.