[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [summary order, PDF] Friday that Bernard Madoff [JURIST news archive] must remain in jail as he awaits sentencing. The ruling affirms last week's ruling by the US District Court for the Southern District of New York [official website] denying Madoff bail. The appeals court found:

our review of the record confirms that the district court’s findings were sufficient under the circumstances of this case. The defendant’s age and his exposure to imprisonment are undisputed, and the court did not err in inferring an incentive to flee from these facts. Moreover, the district court’s finding that the defendant has the means - and therefore the ability - to flee was not clear error.

[JURIST] Chief of staff to former US secretary of state Colin Powell [JURIST news archive] Lawrence Wilkerson criticized US terrorism detention practices Thursday, saying that authorities were holding innocent civilians as terror suspects at the Guantanamo Bay [JURIST news archive] detention center. Wilkerson's comments echoed earlier statements he made on the blog Washington Notes, entitled "Some Truths About Guantanamo Bay" [Washington Notes blog post], published online Tuesday. In the post, Wilkerson outlined a number of issues with the way in which prisoners sent to Guantanamo were detained, including the inability of US forces to distinguish between terrorism suspects and civilians, the use of bounty hunters to gather detainees, and the lack of judicial oversight of the detention process. Wilkerson faulted the administration of former president George W. Bush [JURIST news archive] for failing to acknowledge or quickly ameliorate the practices, attributing the failure to a desire to preserve the president's legacy and reputation. In an interview with the Associated Press, Wilkerson said that many of the detainees were victims of unfortunate circumstances [AP report] and were handed over to US forces in exchange for money.

Wilkerson's criticism of US terrorism policies comes as part of an increasing consensus concerning the perceived inadequacy and uselessness of the Guantanamo detention facility. In June, an investigative report [text; JURIST report] by McClatchy Newspapers revealed that many Guantanamo detainees have no links to terrorism. The McClatchy report echoed comments [JURIST report] made in February 2006 by lawyers for two detainees who alleged that more than half of detainees held at Guantanamo have not committed terrorist acts or are not members of terrorist organizations. In November 2006, Seton Hall law professor Mark Denbeaux [faculty profile] reported that US military Combatant Status Review Tribunals [DOD materials] do not offer Guantanamo detainees an adequate opportunity to contest the accusations against them [JURIST report] or to object to their status as enemy combatants.

[JURIST] The Brazilian Supreme Court [official website, in Portuguese] on Thursday confirmed the rights of indigenous peoples [press release, in Portuguese] to land on the Raposa Serra do Sol [Estadao backgrounder, in Portuguese] reservation and set out 19 rules to guide court in similar cases in the future. The 10 to 1 ruling [Estadao report, in Portuguese] will permit the expulsion of the 200 rice farmers currently living and working on the Raposa Serra do Sol reservation, created in 2005 [BBC report] by the Brazilian government. The rules set out by the court include prohibiting those outside the indigenous communities from hunting, fishing, gathering, or practicing agriculture on the land and granting exclusive use of natural resources to members of the tribal groups. The rules are expected to be binding [UPI report] on any future legal case involving the use of indigenous lands, which cover 12% of Brazil.

In December, the Supreme Court indicated that they would rule in favor of the indigenous peoples [JURIST report], but gave no official ruling. At the time, eight of the eleven judges voted in favor of indigenous peoples, but one requested more time to deliberate. Because of the high likelihood of victory, indigenous peoples began celebrating immediately.

[JURIST] A judge for the US District Court for the District of Columbia [official website] on Thursday granted a preliminary injunction [opinion, PDF] against a federal rule [50 CFR § 27.42 text] that permits the possession of "concealed, loaded and operable" hand guns in national parks and wildlife refuges in accordance with state laws. The rule was a enacted late in the term of former president George W. Bush [official website; JURIST news archive]. Historically, the Department of the Interior [official website] (DOI) permitted [36 CFR § 2.4(a)(2) text] only "packed, cased or stored" weapons to avoid ready use. The Brady Campaign to Prevent Gun Violence and the National Parks Conservation Association [advocacy websites] brought suit claiming the DOI did not prepare an environmental assessment or an environmental impact statement prior to enactment, pursuant to the National Environmental Protection Act [42 USC § 4331 text]. The DOI argued the rule did not authorize environmental impacts, thus no study was needed. The court held the rule was a result of an "astonishingly flawed process" by the DOI and their defense invoking a categorical exclusion was "arbitrary and capricious."

This injunction follows a memorandum [text, PDF; JURIST report] by White House Chief of Staff Rahm Emanuel [official profile] to agency and department leaders requesting the review of pending regulations that were advanced late in the Bush administration. Additionally, challenges to firearm restrictions [JURIST report] have become increasingly common since the Supreme Court's 5-4 decision in District of Columbia v. Heller [Duke Law backgrounder; JURIST report], in which the Court affirmed a decision invalidating the District of Columbia handgun ban [JURIST report]. Heller marked the first occasion that the Supreme Court directly addressed the Second Amendment since 1939's US v. Miller [opinion].

[JURIST] US Attorney General Eric Holder [official profile] announced [press release] Thursday new guidelines [memorandum, PDF] for complying with the Freedom of Information Act (FOIA) [text]. The new guidelines, designed to increase transparency in government, will

rescind the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." Instead, the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

[JURIST] The US House of Representatives [official website] passed a bill [H.R. 1586 text, PDF] Thursday that would tax bonuses given to employees of companies that received money from government stimulus programs at 90 percent. The bill, which was passed by a vote of 328-93 [roll call vote], was drafted and voted on in reaction to large bonus payments made in the past week to employees of embattled insurance company American International Group (AIG) [corporate website]. A number of Republican representatives supported the bill, which also received many Democratic votes. The bill amends the Internal Revenue Code to provide for a 90 percent tax on bonuses from a company that received more than $5 billion under the Troubled Asset Relief Program (TARP) of the Emergency Economic Stabilization Act of 2008 [text, PDF], Fannie Mae and Freddie Mac [corporate websites], or any entity related to those companies. The tax will not apply to employees who irrevocably waive their entitlement to bonuses defined in the legislation. The bill will now move to a vote in the US Senate [official website]. While the bill was an immediate response to recent employee bonuses at AIG, if signed into law, it would affect employees [Washington Post report] at many of the world's leading financial institutions, where compensation is often heavily reliant on bonuses.

The House passage of H.R. 1586 comes more than a month after President Barack Obama [official profile] announced a $500,000 cap on executive compensation [JURIST report] for companies receiving "exceptional assistance" from the federal government. That statement came in conjunction with an announcement from Treasury Secretary Timothy Geithner [official profile], highlighting increased restrictions on financial institutions [Treasury press release] receiving government assistance. The strong reaction to exorbitant executive compensation and bonuses comes as the US government and the Obama administration attempt to grapple with the ongoing global financial crisis [JURIST news archive]. Attempts to gain control over the roiling credit markets and possible widespread bank insolvencies have included the passage in September of a $700 billion financial rescue bill [JURIST report], creating the TARP, which provided economic assistance to at-risk financial institutions. In early October, the US Securities and Exchange Commission began an agency review of financial accounting procedures [JURIST report], including "mark-to-market" [SEC backgrounder] rules.

[JURIST] The US Senate [official website] on Thursday confirmed [materials; HLS press release] Harvard Law School dean Elena Kagan [professional profile] as Solicitor General [official website] by a vote of 61-31. Kagan, the first woman to hold the office, faced opposition from Senator Arlen Specter (R-PA) [official website] during Senate Judiciary Committee hearings [JURIST report] last month for her role in a lawsuit against the Department of Defense [JURIST report] challenging the so-called Solomon Amendment [text], which makes federal funding for universities conditional on cooperation with military recruiters. Kagan said the amendment violated the school's policy [JURIST report] prohibiting recruiting by employers who discriminate based on sexual orientation. In remarks before Thursday's floor vote Specter also criticized Kagan for giving vague answers [transcript] to questions.

As solicitor general, Kagan is formally responsible for conducting all litigation on behalf of the United States in the US Supreme Court and supervising the handling of US litigation in federal appellate courts. Kagan has been Harvard Law School dean since 2003 [JURIST report] but has never argued a Supreme Court case.

[JURIST] The Israel Defense Forces (IDF) [official website] said Thursday that it would conduct an internal investigation into reports that Israeli soldiers have committed war crimes against Palestinian civilians. The announcement follows soldiers' reports of civilian killings [Haaretz reports] and vandalism under liberal rules of engagement during a recent operation in the Gaza Strip. It also came on the same day that UN Special Rapportuer on human rights in the Palestinian territories Richard Falk [appointment release] issued a report [text, PDF] to the UN Human Rights Council [official website], in which Falk criticized Israel [Haaretz report] for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Falk called for an independent investigation into the alleged crimes, which he said included the targeting of hospitals and mosques, the use of white phosphorus incendiary bombs in heavily populated areas, as well as Israel's blockade of the Gaza Strip. The Palestinian Centre for Human Rights [advocacy website] has estimated [press release] that 1,417 have died in the conflict, of which 926 were civilians.

Earlier this week, a group of 16 human rights investigators and judges sent an open letter [text; JURIST report] to UN Secretary-General Ban Ki-Moon [official profile; JURIST news archive] and the UN Security Council calling for an investigation into the alleged crimes. Earlier this month, Iran announced that it would seek INTERPOL arrest warrants [JURIST report] for Israeli war crimes suspects. In January, UN High Commissioner for Human Rights Navi Pillay called for an independent investigation [statement text; JURIST report] of possible war crimes and human rights violations in Gaza. International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo is also attempting to gain jurisdiction over Israel [JURIST report] to investigate its actions in Gaza for alleged war crimes. Israel has already begun to consider defenses against possible war crimes charges, partly based on accusations [JURIST reports] that it used white phosphorus in a civilian area.

[JURIST] The Chinese government on Friday detained a former soldier who has called for an investigation into the 1989 killings of pro-democracy protesters at Tiananmen Square [BBC backgrounder]. Chinese human rights organization Civil Rights and Livelihood Watch (CRLW) [official website, in Chinese] said that Zhang Shijun, a former member of the Chinese army's 162nd motorized infantry division, has been detained (CRLW report, in Chinese] after he wrote an open letter to Chinese Premier Hu Jintao calling for an investigation into the killings. Zhang was recently interviewed about the events of that day, lamenting his own role, and was then detained [AP reports] by local authorities.

A report by Chinese Human Rights Defenders (CHRD) [advocacy website] suggests that Chinese authorities have intensified arrests of dissidents because of the approaching 20th anniversary of the Tiananmen Square protests. The Tiananmen protests began in April 1989 with mainly students and laborers protesting the Communist Party of China. The Chinese government declared martial law in May, and initiated the violent dispersal of protesters by the People's Liberation Army on June 4. The government has never publicized official figures, but the Hong Kong-based Information Center for Human Rights & Democracy [advocacy website] reported last June that unnamed sources had estimated 600 people were killed [ICHR report, in Chinese]. Rights groups have continued to urge the Chinese government to release [JURIST report] the remaining imprisoned protesters.

[JURIST] Iranian blogger Omidreza Mirsayafi reportedly committed suicide Wednesday after serving one month of a 30-month prison sentence for insulting Iran's spiritual leader Ayatollah Ali Khamenei [BBC profile; official profile]. Both the International Campaign for Human Rights in Iran (ICHR) and Reporters Without Borders (RSF) [advocacy websites] reported that Mirsayafi had been suffering from depression [RSF report], with ICHR reporting that Mirsayafi had taken an excess of medication [ICHR report]. Human Rights Activists in Iran [advocacy website, in Persian] reported [text] that another inmate at the Evin prison [BBC backgrounder], Dr. Hesam Firouzi, provided first-aid and took Mirsayafi to the prison ward nurse's station, where he was denied medical treatment. The ICHR has called for Iran's judiciary to investigate the death, with spokesperson Hadi Ghaemi saying, "Iranian leaders have relegated the administration of the prison system to a group of incompetent and cruel officials who are showing their utter disregard for human life."

While print journalists have long been imprisoned [JURIST news archive] for producing unfavorable reports, the advent of blogging has resulted in a new group subject to sanctions for their reporting. In January, Chinese blogger Chen Qitang was sentenced to 30 months in prison [JURIST report] for making disparaging remarks about the government. In September, the Singapore Supreme Court sentenced US blogger Gopalan Nair [JURIST report] to three months in jail for insulting a judge. In February 2007, Egyptian blogger Abdel Kareem Nabil was sentenced to four years in prison [JURIST report] for insulting Islam and causing sectarian strife.

[JURIST] A judge in the US District Court for the Eastern District of Virginia [official website] ruled [order, PDF] in an order made public Thursday that defense contractor CACI International [corporate website] is not immune from a lawsuit brought by Abu Ghraib [JURIST news archive] torture victims, denying CACI's motion to dismiss. Judge Gerald Bruce Lee held that the four plaintiffs could go forward with their suit based on allegedly torturous interrogative techniques conducted by CACI. The defense contractor claimed "derivative absolute official immunity" on the grounds that they were performing "a discretionary function within the scope of their government contract" and that the "public benefit of immunity for contractor interrogators outweighs the cost of ignoring a potential injustice should Plaintiffs' claims go unremedied and unaddressed." Lee rejected the argument that CACI was acting within their discretionary scope due to a lack of such evidence at the current stage of litigation. Lee also rejected the public benefit argument, holding that while "in some circumstances, government contractors are immune from liability while performing their government contracts," a balancing test must be applied to weigh the public benefits associated with such immunity with the need to hold individuals "accountable for their wrongful acts." The court addressed the public interest in immunity by finding that:

[t]he public outcry against the abuse of detainees at Abu Ghraib was strong and compelling. Photographs of detainee abuse scarred the national conscience, leading to the publication of numerous books, newspaper and magazine articles and at least one congressional investigation. On the limited record currently before the Court, the Court cannot say that the public has a stronger interest in recognizing immunity than it does in allowing Plaintiffs' suit to proceed.