[JURIST] The US Securities and Exchange Commission (SEC) [official website] on Wednesday charged [complaint, PDF; press release] accountant David Friehling with fraud for his alleged role in the securities fraud scheme committed by financier Bernard Madoff [JURIST news archive]. In the complaint, the SEC alleges that Friehling and his accounting firm made fraudulent representations that they had audited Madoff's records in accordance with Generally Accepted Auditing Standards [text, PDF], even though they had not, that these misrepresentations had enabled Madoff's scheme, and that the firm profited from the fraud. Because of these allegations, Friehling faces charges under the Securities Act [15 USC § 77 text], the Exchange Act [15 USC § 78 text], and the Advisers Act [15 USC § 80 text]. If found guilty, he faces up to 105 years in prison and would have to return any profit he made from the fraud.

Last week, Madoff pleaded guilty [JURIST report] to 11 charges of securities fraud [complaint, PDF; JURIST report]. Last month, Madoff consented [JURIST report] to a partial judgment [SEC press release] with the SEC over civil charges brought by the SEC to obtain a preliminary injunction and asset freeze against him. The same day, SEC Division of Enforcement Director Linda Thomsen announced she was stepping down from her post [SEC press release]. In the week following Madoff's charges, SEC Chairman Christopher Cox [official profile] said that he would launch an immediate investigation [press release; JURIST report] into how the fraud allegedly perpetrated by Madoff went undetected for so long. In December, then-President-elect Barack Obama [official profile] named [press release] Mary Schapiro [professional profile] as the SEC Chairman, replacing Cox.

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Tuesday called on US Attorney General Eric Holder [official profile; JURIST news archive] to commission a special prosecutor [letter, PDF; press release] to investigate tactics used by CIA interrogators against terrorism suspects. ACLU Executive Director Anthony Romero said in a letter to Holder that recently published characterizations [NYRB op-ed; JURIST report] of CIA methods as torture by the International Committee of the Red Cross (ICRC) [official website], combined with other evidence, obligated the attorney general to investigate the allegations. Romero said that those suspected in engaging in or facilitating torture should then be prosecuted under the War Crimes Act [18 USC § 2441 text] and the Anti-Torture Act [18 USC § 2340 text], and that the statute of limitations for some of the alleged offenses would expire in less than a year:

There Is Broad Authority to Investigate and Prosecute Torture Crimes, Including Any Crimes in Ordering or Authorizing Torture: Based on prior government investigations, documents obtained by the ACLU through our FOIA litigation, and numerous media reports, there is credible evidence that acts authorized, ordered, and committed by government officials constitute violations of federal criminal statutes. Although the political debate about whether acts such as waterboarding are torture has caused confusion in some press accounts, waterboarding and other forms of torture and abuse clearly violate existing federal criminal laws, including the War Crimes Act, 18 U.S.C. § 2441, the Anti-Torture Act, 18 U.S.C. §§ 2340-2340A, and federal statutes that criminalize conduct such as assaults by or against U.S. nationals in overseas facilities used by the federal government. There also are numerous federal criminal laws against obstructing or interfering with government investigations or court proceedings. [emphasis omitted]

[JURIST] A US magistrate judge in South Carolina ruled Wednesday that suspected al Qaeda operative Ali Saleh Kahlah al-Marri [NYT profile; JURIST news archive] must remain in prison as the criminal case against him proceeds. Judge Robert Carr denied al-Marri's request to be freed on bail, finding that he had failed to prove that he was not a danger to the community [Bloomberg report], despite his lawyer's assurance that he could be placed in a secure location until his trial. Al-Marri is scheduled to be arraigned in federal court in Illinois on Monday. It is unclear when he will be transferred from South Carolina.

Last week, the US Supreme Court [official website; JURIST news archive] granted [order, PDF; JURIST report] a motion [text, PDF] by the US government to dismiss as moot an appeal challenging al-Marri's indefinite detention, following the Obama administration's decision to try al-Marri in US federal court [JURIST report]. Al-Marri was indicted [indictment text; DOJ press release] earlier this month on two charges of providing material support to al Qaeda and conspiring with others to provide material support to al Qaeda. In January, shortly after taking office, President Barack Obama ordered an immediate review [JURIST report] of al-Marri's detention. Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities in 2001, and was indicted for other crimes. In 2003, then-President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely.

[JURIST] The High Constitutional Court [official website, in French] of Madagascar [BBC backgrounder] announced in a radio address Wednesday that it would accept the military's decision [L'Express report, in French] to install opposition leader Andry Rajoelina [Reuters profile] as the country's new president, one day after the resignation of President Marc Ravalomanana [BBC profile]. The court approved the presidency of 34-year-old Rajoelina despite a requirement in Madagascar's constitution [text, PDF] that the president be at least 40 years of age, declaring that his presidency would be legal for a maximum two-year term [China Daily report]. Ravalomanana passed control of the government to the military Tuesday after months of violence in hopes it would run the nation under a military directorate. The military subsequently passed power to Rajoelina, a former mayor of Madagascar's capital city of Antananarivo who had led protests against Ravalomanana's government. Members of the African Union [official website; JURIST news archive] have since decried Rajoelina's appointment as unconstitutional, indicating that the move may amount to a coup.

Madagascar has faced increasing political violence over the last two months leading to dozens of deaths. In February the police opened fire on anti-Ravalomanana demonstrators, killing 28 [BBC report]. Rajoelina was fired as mayor of Antananarivo [BBC report] in late January following his declaration that he was in charge of Madagascar and his failed efforts to impeach Ravalomanana. Much of the public unrest stemmed from criticisms that Ravalomanana failed to alleviate poverty, as well as his unpopular decision to shut down a television station [BBC report] owned by Rajoelina after the station aired an interview with one of Ravalomanana's former adversaries.

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive] on Tuesday praised [UN News Centre report; UN press briefing] the reinstatement [JURIST report] of Pakistan Supreme Court Chief Justice Iftikhar Mohammad Chaudhry [JURIST news archive]. Pillay's spokesman called the move "an important step in the process of restoring the rule of law in Pakistan," adding that judicial integrity is needed if Pakistan is to make progress in upholding human rights laws such as the UN Convention against Torture [text]. Pillay also praised Pakistani pledges to release activists arrested in recent protests, and called for leaders to end bans on public demonstrations.

Pakistan Prime Minister Syed Yousuf Raza Gilani [BBC profile] announced early Monday that the government would reinstate Chaudhry in response to recent protests by members of the lawyers' movement and opposition politicians and supporters. The news was welcomed [JURIST report] by members of the Pakistani lawyers' movement, who rallied at Chaudhry's home [Geo TV report] Monday, as well as by international groups including the European Union, the UK, and the Association of Pakistani Lawyers. Gilani also ordered government officials to release [Dawn report] anyone arrested during the past week's so-called "long march" [JURIST reports].

[JURIST] The administration of US President Barack Obama [official website] intends to endorse a UN declaration that calls for decriminalizing homosexuality, according to an anonymous official quoted in a Tuesday Associated Press report [text]. In December, the Bush administration declined to sign the statement signed by 66 other nations [UN press release, JURIST report]. The Bush administration offered the rationale that although the US also opposes sexual orientation discrimination, the federal government could not sign a statement which may have bound the US on matters pertaining to state jurisdiction. Among those states declining to support the statement were China, Russia, members of the Islamic Conference, and the Roman Catholic Church. The US Congress has yet to be notified of Obama's decision. Officials who spoke under conditions of anonymity said the Obama administration intends to continue to be vocal in its stance toward defending human rights.

Gay rights have been a contentious issue worldwide with little global consensus. In November, the parliament of Burundi criminalized homosexuality, and the Supreme Court of Nepal approved same-sex marriages [JURIST reports]. In October, the Portuguese parliament voted overwhelmingly against proposals to legalize same-sex marriage [JURIST report]. In the US, same-sex marriages are now permitted in Massachusetts and Connecticut [JURIST report]. Earlier this week the Vermont legislature began debating a bill [JURIST report] that would legalize same-sex marriage. In November, same-sex marriage bans passed [JURIST report] in California, Arizona, and Florida.

2:12 PM ET: The US State Department has issued an official statement [text] that the US is "is pleased to join the other 66 UN member states who have declared their support of this Statement that condemns human rights violations based on sexual orientation and gender identity wherever they occur."

[JURIST] US President Barack Obama [official website] on Tuesday nominated [press release] Judge David Hamilton [official profile] to serve on the US Court of Appeals for the Seventh Circuit [official website], thereby moving to fill the first of 15 federal appellate vacancies [DOJ materials]. Hamilton previously served for 14 years as a district judge for the US District Court for the Southern District of Indiana [official website] before having been appointed Chief Justice of that court in January 2008. Obama attributed his decision to Hamilton's reputation as a mainstream jurist:

Judge Hamilton has a long and impressive record of service and a history of handing down fair and judicious decisions. He will be a thoughtful and distinguished addition to the Seventh Circuit and I am extremely pleased to put him forward to serve the people of Illinois, Indiana, and Wisconsin.

[JURIST] The Iraqi Cabinet [official website, in Arabic] urged the Presidency Council [official website, in Arabic] Tuesday to ratify death sentences against three former Saddam Hussein officials. The sentences have been delayed because two of the members, President Jalal Talabani and Vice-President Tariq al-Hashemi, have opposed the sentences [AP report] of Hashim al-Taie and Hussein Rashid Mohammed, alleging that both men's roles in the 1988 Anfal campaign against ethnic Kurds [HRW backgrounder] were coerced on threats of death by Saddam Hussein. In accordance with Iraqi law, all three members of the Iraqi Presidential Council must approve the measures. The death sentences and convictions of al-Taie, Mohammed, and Hassan al-Majid, known as "Chemical Ali" [JURIST news archive], were upheld [JURIST report] by the Appeals Chamber of the Iraqi High Tribunal in September 2007 on charges of genocide, war crimes, and crimes against humanity in connection to the 1988 Anfal campaign.

"Chemical Ali" has received two other death sentences in connection with the killings of rioting protesters [JURIST report] in Baghdad and Amarah following the alleged assassination of a prominent Shiite cleric, and for his involvement in the repression of Shiite protesters [JURIST report] in southern Iraq following the 1991 Persian Gulf War. Earlier this month, he was also sentenced to fifteen years [JURIST report] for his involvement in the 1992 murders of 42 merchants accused of price-gouging during a period of UN-imposed sanctions. Earlier this week, Amnesty International (AI) [advocacy website] urged Iraq to commute the 128 death sentences [AI report] that have ratified and to reinstate a death penalty moratorium, alleging that "Iraqi trials do not always conform to international fair trial standards."

[JURIST] The US Navy-Marine Corps Court of Criminal Appeals [official website] upheld [opinion, DOC] Tuesday a military judge's dismissal [JURIST report] of the charges against Lt. Col. Jeffrey Chessani [JURIST news archive], the top-ranking US Marine to face court-martial [JURIST news archive] in the killing of 24 Iraqis [BBC backgrounder] in Haditha [JURIST news archive]. The court affirmed the appearance of "unlawful command influence" [JAG backgrounder] when a lawyer who had investigated the case sat in on meetings at which the case was discussed with the general who ultimately decided to charge Chessani. The court cited the government's failure to bring evidence to negate the appearance of unlawful command influence:

[A]n objective, disinterested observer, fully informed of all the facts and circumstances, would harbor significant doubt about the fairness of this proceeding. Thus, we are left to conclude that the Government has failed to prove beyond a reasonable doubt there was no apparent [unlawful command influence].

[JURIST] A three-judge panel of the US Court of Appeals for the Sixth Circuit [official website] upheld [opinion, PDF] Tuesday a district court decision finding former El Salvador chief military commander Nicolas Carranza [CJA backgrounder] liable for murder and torture committed during the El Salvador civil war [PBS backgrounder] in the 1980s. In 2005, a Tennessee federal jury found Carranza liable [JURIST report] for acts of murder and torture in El Salvador under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA) [texts]. Carranza had appealed the jury verdict, claiming that the district court abused its discretion by holding that extraordinary circumstances justified equitable tolling of the statute of limitations, not granting comity to a Salvadoran amnesty law, and making various evidentiary rulings. He also argued that the district court erred in its jury instruction concerning command responsibility. In the opinion, Judge Eugene Siler addressed the Sixth Circuit's reasons for upholding the district court's decision to allow equitable tolling of the statute of limitations for claims under the ATS and the TVPA:

We have identified five factors a district court should consider when determining whether to equitably toll the statute of limitations: (1) lack of notice of the filing requirement, (2) lack of constructive knowledge of the filing requirement, (3) diligence in pursuing one’s rights, (4) absence of prejudice to the defendant, and (5) the plaintiff’s reasonableness in remaining ignorant of the particular legal requirement. ...

In sum, we conclude that the ten-year limitations period applicable to TVPA claims also governs claims under the ATS, equitable tolling principles apply, and the existence of extraordinary circumstances provides a justification for the application of the equitable tolling doctrine.

[JURIST] A Russian court Tuesday refused a request by defense lawyers to drop new embezzlement and money laundering charges [JURIST reports] against former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his former business partner Platon Lebedev [defense website]. The court also rejected a request by defense lawyers to have the case returned to state prosecutors [ITAR-TASS report] for further investigation. The lawyers for Khodorkovsky and Lebedev expressed incredulity [RIA Novosti report] at the court's decisions, and warned prosecutors and the court that the case would not result in easy convictions of the two. Khodorkovsky and Lebedev are accused of illegally taking approximately $20 billion from Russian energy firm OAO Yukos Oil Co. [TIME backgrounder], but challenged the allegations, asserting that the evidence against them was insufficient [RIA Novosti report] to sustain the prosecution. If found guilty, Khodorkovsky could face 22 years in jail in addition to the eight years he is already serving for fraud and tax evasion.

Their trial on the charges began earlier this month [JURIST report]. Their request to have the charges dropped comes one day after Judge Viktor Danilkin refused to recuse himself [St. Petersburg Times report] from the case amid accusations of bias. Critics have claimed that the charges against Khodorkovsky and Lebedev are politically motivated due to Khodorkovsky's opposition of former Russian president Vladimir Putin [JURIST news archive]. The transfer of the two from prison to Moscow to stand trial on the new charges was ordered [JURIST report] last month by a judge for the District Court in Moscow. Khodorkovsky still maintains that his 2005 conviction [JURIST report] on the fraud and tax evasion was unjust, and maintains his innocence. He requested early release from that sentence last July, but his application was rejected [JURIST reports] in August because he disobeyed guards at the Krasnokamensk penal colony [Guardian backgrounder], refused to participate in a training program, and faced the possibility of additional charges. Khodorkovsky has appealed [JURIST report] that decision.