[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in three cases. In Montejo v. Louisiana [oral arguments transcript, PDF], the Court heard arguments on whether an indigent defendant must affirmatively accept appointment of an attorney to invoke Sixth Amendment protection from police-initiated interrogation in the absence of counsel. The petitioner Jesse Jay Montejo was being questioned in connection with a murder when he requested an attorney and then rescinded his request. Montejo was then brought before a judge for a hearing to appoint counsel, but he did not affirmatively accept the appointment. Montejo sought to suppress statements made after the hearing. The Supreme Court of Louisiana [official website] ruled [opinion, PDF] that a defendant has not "requested" counsel if he accepts court-appointed counsel without making some affirmative statement that he wishes to be represented. At oral argument, counsel for the petitioner argued:

nothing in this Court's precedents or, frankly, in common sense supports a rule that affords less Sixth Amendment protection to defendants who are automatically appointed counsel at initial hearings than to defendants who are appointed counsel after a request for counsel ...

The generous prophylactic rule of Michigan v. Jackson which imputed a defendant's request for counsel in one forum, i.e., his arraignment, to another forum of post-attachment custodial interrogation should not be expanded in this case to a defendant who has done nothing whatsoever to make such a request.

If we assume that public defenders do little or nothing in a case, one cannot have a rule that that time is chargeable under the speedy trial right to the State because to do so creates chaos of constitutional proportions in the criminal justice system.

[JURIST] Former US Defense Secretary Donald Rumsfeld [official profile], as well as more than 100 military officers and personnel, have been sued for the wrongful deaths [complaint, PDF] of two former detainees who committed suicide while at Guantanamo Bay [JURIST news archive]. Family members of the deceased filed the complaint last Wednesday in the US District Court for the District of Columbia [official website]. The parents of Yesser al-Zahrani and Salah Ali Abdullah Ahmed al-Salami seek unspecified damages on behalf of their sons for prolonged arbitrary detention, torture, and cruel treatment suffered at Guantanamo, as well as compensation for the emotional suffering experienced as a result of the defendants’ arbitrary detention of the young men. According to the complaint, "Rumsfeld and other defendants in the chain of command intended, knew or should have known of the forms and methods of physical and psychological torture and abuse inflicted on Messrs. al-Salami and al-Zahrani." The plaintiffs are represented by Meetali Jain from the International Human Rights Law Clinic at American University [clinic website] along with Pardiss Kebraei and Shayana Kadidal from the Center for Constitutional Rights [advocacy website]. The family of a third inmate, Mani al-Utaybi, who committed suicide the same day as al-Zahrani and al-Salami, has not joined the suit.

Military officials from the Naval Criminal Investigative Service (NCIS) have stated that the three detainees, who hung themselves using nooses made from sheets and clothes, committed suicide in pursuit of martyrdom [JURIST report]. All three had participated in hunger strikes and were among those who had been force-fed [JURIST report]. Advisers to US President-elect Barack Obama said Monday that he plans to issue an executive order [JURIST report] during his first week in office closing the Guantanamo Bay prison camp.

[JURIST] The US Court of Military Commission Review (USCMCR) [official website] on Tuesday heard arguments [DOD press release] on whether to reinstate the allegedly torture-induced confession of Guantanamo [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive], which was thrown out [JURIST report] by a military commission last October. Military judge Stephen Henley [official profile] ruled that Jawad's confession to Afghan police commanders and high-ranking government officials on December 17, 2002 was "obtained by physical intimidation and threats of death which, under the circumstances, constitute torture." The judge also disqualified a second confession by Jawad while in US custody, taken one day later, in part because the US interrogator used techniques to maintain "the shock and fearful state" associated with his arrest by Afghan police. Government lawyers have argued [brief, PDF] that the American interrogation was legal and should not be disqualified as a result of actions taken before Jawad was taken into US custody. Lawyers for Jawad insist that although US authorities did not torture Jawad, the confession was obtained soon after the torture and should be rejected. US Army Lieutenant Colonel Darrel Vandeveld, the former lead prosecutor on the military commission trying Jawad, has backed an American Civil Liberties Union (ACLU) habeas corpus petition [text, PDF] calling for Jawad's release, stating that there was "no credible evidence or legal basis" to justify his detention or prosecution.

Jawad was captured in Afghanistan in 2002 when he was 16 or 17 years old and was later transferred into US custody and brought to Guantanamo. He was designated an "enemy combatant" in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in a December 2002 grenade attack in Kabul which injured two US soldiers and an Afghan translator. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called "frequent-flier program," in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad is the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], which provides that statements obtained through torture are not admissible. Advisers to US President-elect Barack Obama said Monday that he plans to issue an executive order [JURIST report] during his first week in office closing the Guantanamo Bay prison camp.

[JURIST] The European Union Humanitarian Aid Commissioner Louis Michel [official profile] on Tuesday said that Israel is not respecting international human rights law in the Gaza Strip. In an interview [text, in French] with the Belgian newspaper La Libre Belgique, Michel said that the evidence, which experts agree upon and denounce, shows that Israel is not respecting international human rights laws. Speaking of the state of the Gaza Strip, Michel highlighted the conditions in which the people there are experiencing including the lessened amount of trucks carrying food to the region. He emphasized that:

International humanitarian law is not made for peace time and is done for the war. The first requirement is that the foundation is an occupying power has an obligation to safeguard people's lives, protect, feed and care for them. This is obviously not. From my point of view, it is tragic and I cannot accept it."[translation]

[JURIST] The court-martial for US Marine Corp Sgt. Jermaine Nelson [JURIST news archive] has been scheduled for February 16, according to a Monday report in the San Diego Union-Tribune. The trial was scheduled to begin earlier this month, but a delay was granted following a ruling in which the court approved the appointment of an expert witness for the defense who will review forensic data [North County Times report]. Defense council has also sought to exclude a tape-recorded interview given by Nelson to the Naval Criminal Investigation Service (NCIS) [official website], in which he admits that after seeing fellow Marines Sgt. Jose Nazario and Sgt. Ryan Weemer [JURIST news archives] shoot prisoners, he lost his reluctance to join in the killings [LA Times report]. The court ruled that a portion of a statement Nelson made to investigators in March 2006 will be admitted at trial, as will statements he made in March and August 2007.

Nelson has pleaded not guilty [JURIST report] to one count of unpremeditated murder and three counts of dereliction of duty stemming from his involvement with the shooting of four unarmed and bound insurgents during the battle of Fallujah [GlobalSecurity backgrounder; JURIST news archive]. After Weemer admitted during a polygraphed job interview with the US Secret Service that he had witnessed indiscriminate killings in Fallujah, NCIS announced investigations of at least 10 Marines [JURIST report] in connection with the Fallujah offensive. Military journalist Nathaniel Helms corroborated Weemer's account, reporting that he witnessed Marines execute subdued Iraqi prisoners, whose bodies were later buried under rubble from an air strike. Nazario faced charges for the same incident but was acquitted by a civilian jury [JURIST report].

[JURIST] The US Supreme Court [official website; JURIST news archive] decided two cases Tuesday. The Court ruled [opinion, PDF] in Chambers v. United States [Cornell LII backgrounder; JURIST report] that failure to report to prison does not constitute a "violent felony" for purposes of sentence enhancement under the Armed Career Criminals Act (ACCA) [18 USC § 924(e), text]. Petitioner Deondery Chambers pleaded guilty to being a felon in possession of a firearm. At sentencing the state of Illinois argued that he was subject to a 15-year mandatory minimum sentence under the ACCA, based in part on a prior conviction for escape when he failed to report to prison. Justin Stephen Breyer wrote for the Court:

We now must consider whether the "failure to report" crime satisfies ACCA’s "violent felony" definition. It clearly satisfies the first part of that definition, for it is a "crime punishable by imprisonment for a term exceeding one year." But it satisfies none of the other parts. It does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." It does not consist of "burglary, arson, or extortion," or "involv[e] use of explosives." And, more critically for present purposes, it does not "involve conduct that presents a serious potential risk of physical injury to another."

where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet "final" for purposes of §2244(d)(1)(A). In such a case, "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal.

[JURIST] Human rights groups are concerned about US President-elect Barack Obama's intentions to keep the Guantanamo Bay [JURIST news archive] detention center open for at least 100 days after taking office, according to a Monday report in the Miami Herald. On Sunday, Obama told ABC news in an interview [ABC transcript] that he would close the base but that doing so would be complicated [JURIST report]. American Civil Liberties Union [advocacy website] (ACLU) executive director Anthony Romero disagrees, saying [press release]:

While the next steps might be politically charged and require courage, they are not fundamentally complicated. Each detainee's case must be reviewed by the new Justice Department. If there is evidence of criminal conduct...detainees should be prosecuted in our traditional courts, which are the best in the world and fully capable of handling sensitive national security issues without compromising fundamental rights. If there is not, detainees should be repatriated to countries that don't practice torture.

[JURIST] European Commission (EC) [official website] President Jose Manuel Barroso [official profile] on Monday said that the commission needs to see more results [speaking points, PDF; video] from Romania's effort to fight corruption and reform the judiciary, during a press conference with Romanian President Traian Basescu [official profile] and Prime Minister Emil Boc [official profile, in Romanian]. Romania is currently subject to increased scrutiny from the commission as a result of the country's failure to address the problems since joining the EU. If the commission is not satisfied with the progress made by Romania, it could be subject to a freeze in financial support. Recent criticisms stem in part from the country's inability to lift the immunity on corruption charges against former prime minister Adrian Nastase [official profile, in Romanian]. During the briefing the Romanian officials said that the government hopes to have all scrutiny removed [EU Observer report] by the end of 2009.

Romania has remained a target for criticism from the EU on corruption issues since it joined [JURIST report] in January 2007. In June 2007, the EC issued a progress report [JURIST report], saying that Romania needed to do more to achieve judicial reform, and combat corruption and organized crime. In July 2008, Romania was again criticized [EU report] for its failure to address the same issues.

[JURIST] The US military announced on Monday that the Guantanamo Bay [JURIST news archive] hunger strike has increased to 42 detainees. The number was believed to be 30 last Thursday. The military attributes the increase to the recent seven year anniversary of the facility's opening. Another possible contributing factor is the upcoming inauguration of President-elect Barack Obama [transition website], who recently reaffirmed his campaign promise to immediately close the prison [JURIST report]. Human right groups believe that the number of detainees currently on a hunger-strike is much higher. Detainees who refuse to eat are force-fed through tubes in order to prevent them from starving, a practice that has led to criticism. Last week the American Civil Liberties Union (ACLU) [advocacy website] sent a letter [text, PDF; press release] to Defense Secretary Robert Gates asking him to end the practice.

Hunger strikes have been an issue at Guantanamo Bay for several years. In September 2005, the number of detainees on strike [JURIST report] was at least 128. After instituting the force-feeding measures [JURIST report] the number of detainees on strike dwindled to just three or four. The current strike is not the first in connection to an anniversary of the facility's opening. In January 2007, the number of detainees on strike more than doubled [JURIST report] as the detention center's fifth anniversary approached.