[JURIST] The US Court of Appeals for the District of Columbia Circuit ruled [opinion, PDF] on rehearing Friday that it had no jurisdiction over Guantanamo detainees' petitions for subject-matter review of "enemy combatant" status decisions by Combatant Status Review Tribunals (CSRT) [DOD materials] in the wake of the US Supreme Court's ruling last year in Boumediene v. Bush [Duke Law backgrounder; JURIST news archive] that found a governing part of the Detainee Treatment Act (DTA) [text] unconstitutional. Agreeing with the government in a case which originally arose in 2007 before Boumediene was decided, Judge Douglas Ginsburg wrote that the subject-matter review provision in the DTA was inextricably linked to the provision eliminating habeas corpus jurisdiction that had been rejected by the high court:

Both the text of the relevant provisions and the enactment of successive jurisdiction-stripping provisions demonstrate clearly that the Congress would not in the DTA have given this court jurisdiction to review CSRT determinations had it known its attempt to remove the courts’ jurisdiction over habeas petitions would fail.

There is no rational reason why, if Congress had known that habeas jurisdiction had to be preserved, it would have also wanted to give Guantanamo detainees the option of bringing a simultaneous action directly in the court of appeals. Congress designed the direct review regime to limit judicial intervention and to consolidate review in one forum...

...We believe there is a high probability that a consequence of Boumediene’s striking down the legislative bar against habeas jurisdiction is that the direct judicial review provision of the Detainee Treatment Act fell as well. It has long been the rule that if separate statutory provisions are so “dependent on each other, as conditions, considerations, or compensations for each other as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”

[JURIST] The office of the Bosnian war crimes prosecutor [official website] on Thursday indicted eight Bosnian Serbs [press release] on charges of taking part in war crimes early in the Bosnian war. Damir Ivankovic, Zoran Babic, Gordan Djuric, Milorad Radakovic, Milorad Skrbic, Ljubisa Cetic, Dusan Jankovic and Zeljko Stojnic are suspected to have taken part in the August 21, 1992 massacre of over 200 Muslims and Croat civilians as part of an ethnic cleansing on Mount Vlasic. The prisoners, who were told they were being released, were taken to the woods, and forced to kneel at the edge of a ravine where they were then shot. Four of the suspects were arrested [JURIST report] in October.

In 2004, the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] sentenced [press release] former Bosnian Serb "Intervention Squad" officer Darko Mrdja [ICTY backgrounder, PDF] to 17 years in prison for "unloading, guarding, escorting, shooting and killing" the victims at Koricanske Stijene. The Bosnian Prosecutor's Office works in tandem with the War Crimes Chamber [HRW backgrounder] of the Court of Bosnia and Herzegovina [official website; JURIST news archive], which was established to alleviate the caseload of the ICTY. The War Crimes Chamber will continue to hear cases as the ICTY winds down in 2010.

[JURIST] US President-elect Barack Obama [transition website] on Friday announced his nominations for the top posts [press release] in the US intelligence community, designating Admiral Dennis Blair to be Director of National Intelligence and Leon Panetta [profile] to be director of the Central Intelligence Agency (CIA) [official website]. Obama also announced that John Brennan will serve as Homeland Security Advisor and Deputy National Security Advisor for Counter-terrorism as an Assistant to the President. Blair has served as Commander of US forces in the Pacific and as Associate Director of Central Intelligence for Military Support. Panetta has served as a Congressman, Office of Management and Budget (OMB) [official website] Director, and White House Chief of Staff. Panetta will replace current CIA director Michael Hayden [JURIST news archive], who has agreed to stay on [press release] and cooperate fully until the transition is complete. Brennan is a CIA veteran and former leader of the National Counter-Terrorism Center. It is anticipated that all three officials will play some role in addressing concerns about harsh interrogation measures and other terrorism-related practices that become legally and ethically controversial during the Bush administration.

On Wednesday, it was reported [JURIST report] that Obama would appoint Harvard Law School professor Cass Sunstein [profile] as administrator of the Office of Information and Regulatory Affairs [official website]. On Monday, Obama named four former Clinton-era attorneys to high-level posts [press release; JURIST report] within the US Department of Justice (DOJ) [official website], including Dean of Harvard Law School Elena Kagan [professional profile; HLS press release] as Solicitor General. Last month, Obama officially announced that he was nominating former DOJ official Eric Holder [professional profile; JURIST report] as the next US attorney general. If confirmed by the Senate, Holder will be the first African American to lead the DOJ. Holder's confirmation hearings [JURIST report] are scheduled to begin next week.

[JURIST] A three-judge panel of the US Court of Appeals for the Fourth Circuit on Thursday ruled [opinion, PDF] that Congress acted beyond its authority when it enacted a law that allows indefinite federal civil commitment of "sexually dangerous" offenders beyond the end of their sentences. The indefinite civil commitment was authorized by 18 U.S.C. § 4248 [text], as part of the Adam Walsh Child Protection and Safety Act [text, White House backgrounder], signed by President George W. Bush in 2006, which also established [JURIST report] a national sex offender registry, increased punishments for some federal crimes against children, and strengthened child pornography protections. In upholding the decision [JURIST report] by district court Judge W. Earl Britt, Judge Diana Gribon Motz [official profile] held that the right of civil commitment was reserved strictly for the states, stating:

The power claimed by § 4248 — forcible, indefinite civil commitment — is among the most severe wielded by any government. The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers.

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] Friday in four cases. In the consolidated cases of Republic of Iraq v. Beaty [docket; cert. petition, PDF] and Republic of Iraq v. Simon [docket; cert. petition, PDF], the Court will consider whether Iraq has sovereign immunity from the jurisdiction of US courts in cases involving alleged misdeeds that occurred during the Saddam Hussein regime. The plaintiffs in both cases sued the Iraqi government, alleging that they were detained and tortured during the 1990s Gulf War. The US Court of Appeals for the DC Circuit found in both Beaty and Simon [opinions, PDF] that the Iraqi government was subject to suit under the the doctrine of sovereign immunity.

In Northwest Austin Municipal Utility District Number One v. Mukasey [docket; jurisdictional statement, PDF], the Court will consider whether the Voting Rights Act (VRA) [text] permits the appellant municipality to "bail out" from the pre-clearance requirement of Section 5 [DOJ backgrounder] if it can establish a history of compliance with the VRA, and whether Congress was justified by current voting discrimination when it extended the requirement in 2006 for another 25 years. Section 5 requires prior review before changes in voting laws can be enacted in certain states. The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement. The US District Court for the District of Columbia found [opinion, PDF] in favor of the federal government.

In the consolidated cases of Ricci v. DeStefano [docket; cert. petition, PDF] and Ricci v. DeStefano [docket; cert. petition, PDF], the Court will consider whether a government employer may refuse to certify results of a civil service exam that would make disproportionately more white applicants than minority applicants eligible for promotion, because of fears of charges of racial discrimination. Plaintiffs were applicants who qualified for promotions based on their test scores but were denied promotions when the municipality refused to certify the test results in "voluntary compliance with Title VII." The US Court of Appeals for the Second Circuit found [opinion, PDF] that the government employer's actions were protected.

Finally, in the consolidated cases of Horne v. Flores [docket; cert. petition, PDF] and Speaker of the Arizona House of Representatives v. Flores [docket; cert. petition, PDF], the Court will consider whether the US Court of Appeals for the Ninth Circuit erred in declining to modify an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children. The circuit court affirmed [opinion, PDF] a lower court ruling that the state of Arizona was in violation of the Equal Educational Opportunity Act of 1974 [text].

[JURIST] French president Nicolas Sarkozy [official website; JURIST news archive] on Wednesday announced plans [flash video, in French; press release, in French] to end the country's use of magistrate-led investigations in criminal cases. Sarkozy made the announcement at the annual opening [MOJ materials, in French] of the Court of Cassation [official website], and said the changes would better administer justice to the accused, because judges would no longer face the potential conflict of acting as both investigator and adjudicator. If the changes are made, all criminal investigations in the country will be lead by state prosecutors, and judges will assume a more neutral role in the proceedings. The changes would make the trials more like the adversarial system used in the UK and US, but commentators expect resistance [Guardian report] from judges who have said the change is being made for political reasons.

The changes are seen to be due in part to a parliamentary inquiry [hearing materials, in French; JURIST report] into one magistrate's erroneous conviction of 13 suspects for pedophilia in the French town of Outreau. The suspects in that case spent 16-39 months in jail before all the convictions were finally overturned [JURIST report] in 2005 after the accuser admitted that her accusations were false [JURIST report]. The French justice system has been widely criticized for its handling of the case [JURIST report], with many questioning why court magistrates accepted the accuser's testimony and that of her children despite the inconsistencies in their testimony.

[JURIST] US Attorney General Michael Mukasey [official profile; JURIST news archive] on Wednesday ruled [opinion, PDF] that aliens may no longer challenge deportation hearings based on ineffective assistance of counsel. Mukasey's opinion, which is binding on immigration courts and the Board of Immigration Appeals, holds that immigrants have no constitutional right to a new deportation hearing if their lawyers make mistakes. This ruling overturns precedent set in 1988 in Matter of Lozada [opinion, PDF], which held that although aliens have no Sixth Amendment right to counsel in deportation hearings, they do have a right to effective assistance of counsel under the Due Process clause of the Fifth Amendment. Mukasey wrote:

Aliens in removal proceedings ... have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada and Matter of Assaad are inconsistent with this conclusion, those decisions are overruled. [citations omitted]

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive] Friday called for an independent investigation [statement text] of possible war crimes and human rights violations in the ongoing conflict [BBC materials] between Israel and combatants in the Gaza Strip. Pillay made the comments at a special session [materials] of the UN Human Rights Council [official website], and reiterated her calls [JURIST report] for Israel to respect the bounds of international law regarding the protection of civilians [Fourth Geneva Convention text], even if the Gaza combatants do not:

Let me... underscore that while indiscriminate rocket attacks against civilian targets in Israel are unlawful, Israel's responsibility to fulfill its international obligations is completely independent from the compliance of Hamas with its own obligations under international law. States' obligations, particularly those related to the protection of civilian life and civilian objects, are not subject to reciprocity...

I also wish to stress that the three cardinal principles of international humanitarian law, namely proportionality, distinction, and precaution, fully apply in the context of this conflict, as they do in any other war situation. The first principle prohibits attacks that may be expected to cause such loss of civilian life or injury to civilians that would be excessive in relation to the anticipated military advantage. The second principle imposes on belligerents the obligation to distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks may only be directed against combatants or legitimate military objectives. The last norm binds parties to a conflict to take all feasible precautions to avoid, or at least minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.

Accountability must be ensured for violations of international law. As a first step, credible, independent, and transparent investigations must be carried out to identify violations and establish responsibilities. Equally crucial is upholding the right of victims to reparation. I remind this Council that violations of international humanitarian law may constitute war crimes for which individual criminal responsibility may be invoked.

I stress the need to deploy human rights monitors in both Israel and the Occupied Palestinian Territory who can independently document violations of international human rights and humanitarian law that may have been perpetrated. I also urge that Special Procedures mandate holders be granted unrestricted access to Gaza and the West Bank.

[JURIST] A committee of the Illinois House of Representatives [official website] on Thursday voted unanimously to recommend the impeachment [report, PDF] of Governor Rod Blagojevich [official website; JURIST news archive]. The committee was appointed [JURIST report] last month to gather evidence and testimony regarding the charges [complaint, PDF] against Blagojevich. US federal prosecutor Patrick Fitzgerald asked the committee to limit its impeachment inquiry [JURIST report] and avoid looking into the criminal charges, warning that such an inquiry could hamper the investigation. In its 78-page report, the committee concluded:

The Governor faces an array of criminal charges related to his official conduct as Governor. The Governor's appointment of a U.S. Senator, pursuant to a valid state law, has been questioned because of a lack of trust in the Governor. The federal Government no longer trusts the Governor with vital security information to which other governors routinely have access. Our State's and Nation's highest elected officers have asked the Governor to resign. The drop in bond ratings will cost the State millions of dollars because of the Governor's arrest. Whether the people of this State retain confidence in the Governor is a question that each member of this Committee, and perhaps the full House, must answer.

[JURIST] Bangladeshi Law, Justice, and Parliamentary Affairs Minister Shafique Ahmed [official website] on Thursday declared his government's desire to restore Bangladesh's 1972 constitution [text, PDF]. The move signals an intent to return [Hindu News report] to the four principles of nationalism, democracy, secularism, and socialism that Bangladesh endorsed after its independence from Pakistan in 1971. Ahmed told the Daily Star that the government would work to try those who committed war crimes [text] during the 1971 war.

Bangladesh elected Prime Minister Sheikh Hasina in December, ending two years of military rule. Prior to the elections, interim Bangladeshi president Iajuddin Ahmed [official profile] signed [JURIST report] the Emergency Powers (Repeal) Ordinance of 2008, lifting a two-year state of emergency to allow for political campaigning. The state of emergency, declared in January 2007 [JURIST report], had suspended democratic rights throughout the country. The state of emergency had been briefly lifted in November, but was reinstated [JURIST report] following violent protests after Jamaat-e-Islami [party website] party leaders were arrested on corruption charges. In June, Hasina was indicted on charges [JURIST reports] that she received approximately $440,000 in illegal kickbacks on a power-plant deal during her earlier term as prime minister between 1996 and 2001.

[JURIST] A Chinese court on Wednesday sentenced democracy advocate Wang Rongqing to six years in jail on charges of subverting state power. The 65-year-old activist, who has pressed for democracy since the 1970s, was tried [AP report] in Hangzhou City Intermediate People’s Court, in the eastern province of Zhejiang, on charges relating to his organization of the China Democracy Party [official website], which the Public Security Ministry [official website, in Mandarin] declared to be an "enemy organization." He was also charged for his signing of the "Charter 08" [text] democracy petition prior to the Beijing Olympics and for his work with The Opposition Party, a pro-democracy newspaper.

China's official Communist Party [official website] has been criticized by rights groups [AI report, PDF; HRIC advocacy website] for its treatment of emerging opposition parties. Several prominent counterrevolutionaries have been imprisoned, including Hu Shigen [PEN profile], who was sentenced to 20 years in prison, but released [JURIST report] in August after serving 16 years. In June 2008, the US State Department said in its annual Advancing Freedom and Democracy Reports [text] that China "continued to deny its citizens basic democratic rights, and law enforcement authorities suppressed those perceived to threaten the legitimacy or authority of the Chinese Communist Party," charges which the Chinese government called "denial of reality and utterly groundless." [official statement; JURIST report]. The UN Committee Against Torture [official website] also expressed concern [press release; JURIST report] over allegations that Chinese authorities continued the routine and widespread practice of torture and ill-treatment of suspects to extract confessions," charges which China rejected [JURIST report].