[JURIST] FBI director Robert Mueller [official profile] told [testimony] the Senate Judiciary Committee [official website] Wednesday that the rise in financial fraud investigations is limiting the ability of the FBI to fight other crimes. Mueller, speaking during the "Oversight of the Federal Bureau of Investigation" hearing [materials], told Congress that since 2003 public corruption cases have increased more than 58 percent. The effort to fight the drastic increase in cases has required additional resources from within the organization. Mueller said:

These cases are straining the FBI's resources. Indeed, we have had to shift resources from other criminal programs to address the current financial crisis. In Fiscal Year 2007, we had 120 agents investigating mortgage fraud cases. In Fiscal Year 2008, that number increased to 180 agents, and currently over 250 agents are assigned to mortgage fraud and related cases.

[JURIST] The Xinhua District Court in China Wednesday accepted the first civil suit seeking damages against a dairy company in connection with the contaminated milk scandal [JURIST news archive]. The lawsuit [Xinhua report], which was brought by the family of one of the children who fell ill last year, seeks more than USD $4,500 from the now-bankrupt [JURIST report] Sanlu Group [Research and Markets profile]. The Xinhua District Court is the first court to accept a lawsuit on the scandal since the Chinese courts announced that earlier this month that they would allow [JURIST report] such suits. Prior to the announcement the Chinese government had sponsored a compensation plan [JURIST report] that paid families between USD $290 and $29,000.

Two people were sentenced to death [JURIST report] in January for their roles in the scandal that killed six children and sickened nearly 300,000 others. Earlier that month, lawyers for the families of 213 Chinese children sickened or killed by the contaminated milk petitioned [JURIST report] the Supreme People's Court to hear a class action lawsuit against 22 dairy companies involved in the contamination, seeking more than $5 million in damages. In January, police in China detained five parents [JURIST report] of children who became sick after drinking melamine-tainted milk, preventing the parents from participating in a news conference.

[JURIST] Israel unlawfully and extensively used white phosphorous [GlobalSecurity backgrounder] munitions in their recent Gaza [JURIST news archive] offensive, according to a report [text, PDF] released Wednesday by Human Rights Watch (HRW) [advocacy website]. The report maintains that while white phosphorous is allowed to be used to obscure ground operations in open areas and against military targets, international law prohibits air-bursting the shells over populated areas due to the risk it poses to civilians. According to the report, Israeli Defense Forces (IDF) [official website] fired these munitions over homes, apartment buildings, a hospital, a school being used for shelter and other civilian-occupied buildings, causing deaths, injuries and property destruction. The report further alleges that the white phosphorous munitions being used were provided by the US government, calling for the US to cease transfers of white phosphorous to Israel and to conduct an investigation into whether or not such use violated international law. The report also calls on the UN [official website] to conduct public investigations. The report states that:

The unlawful use of white phosphorus was neither incidental nor accidental. It was repeated over time and in different locations, with the IDF "air-bursting" the munition in populated areas up to the last days of its military operation. Even if intended as an obscurant rather than as a weapon, the IDF's repeated firing of air-burst white phosphorus shells from 155mm artillery into densely populated areas was indiscriminate and indicates the commission of war crimes.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Wednesday in United States v. Denedo [oral arguments transcript, PDF; JURIST report], in which the Court will consider whether a military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis [backgrounder] filed by a former service member to review a final court-martial conviction. The case involves a Nigerian national who enlisted in the US Navy and was later convicted on larceny charges. After he was discharged from the Navy, deportation proceedings began on the basis of the conviction. Denedo sought a writ of error coram nobis from the US Court of Appeals for the Armed Forces (CAAF) [official website], which found [opinion, PDF] that it had jurisdiction over the case. Appealing the ruling, the Department of Justice [official website] argued that the CAAF did not have jurisdiction to hear the petition because Denedo was a civilian at the time of its filing, and that Congress had not granted this kind of military court the ability to hear such writs after a petitioner leaves the military. Counsel for Denedo argued that the All Writs Act (28 USC § 1651 text) conferred jurisdiction for the courts to hear the writs just as the act did for non-military courts.

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 7-2 Wednesday in Puckett v. United States [Cornell LII backgrounder; JURIST report] that a defendant's claim that the prosecution breached a plea agreement must be raised at trial in order to be reviewable on appeal, according to the plain-error standard under the Federal Rules of Criminal Procedure [Rule 52(b) text]. Justice Antonin Scalia wrote for the majority:

Application of plain-error review in the present context is consistent with our cases, serves worthy purposes, has meaningful effects, and is in any event compelled by the Federal Rules. While we recognize that the Government's breach of a plea agreement is a serious matter, "the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Pro-cedure."

Puckett is entitled to relief because he and every other defendant who may make an agreement with the Government are entitled to take the Government at its word. Puckett insists that the Government keep its word, and if we are going to have a plain-error doctrine at all, the Judiciary has no excuse for closing this generally available avenue of redress to Puckett or to any other criminal defendant standing in his shoes.

[JURIST] A substantial increase in the number of immigrants detained by the US over the last decade and the length of their detentions "falls short of international human rights law," according to a report [text, PDF; AI executive summary] released Wednesday by Amnesty International (AI) [advocacy website]. AI reported that the number of immigrants detained by US Immigrations and Customs Enforcement (ICE) [official website] officials has tripled since 1996 to reach a daily detention capacity of 30,000. Those in custody include not just suspected immigration violators but also asylum seekers, survivors of torture and human trafficking, children, legal permanent residents, and parents of US citizens. The report found that immigrant detainees are commonly held for months or years without individualized hearings reviewing the legitimacy of detention, in violation of the ban on arbitrary detention established by Article 9 of the UN International Covenant on Civil and Political Rights [text]. AI found that the vast majority of immigrant detainees are unable to secure legal assistance, and that approximately 67 percent of immigrant detainees are currently being held in state and county jails alongside criminals. Many of these facilities have been criticized for human rights violations such as excessive use of restraints and inadequate medical attention. AI presented several key recommendations [text] to restore human rights protection:

1. The US Congress should pass legislation creating a presumption against the detention of immigrants and asylum seekers and ensuring that it be used as a measure of last resort.
2. The US government should ensure that alternative non-custodial measures, such as reporting requirements or an affordable bond, are always explicitly considered before resorting to detention. Reporting requirements should not be unduly onerous, invasive or difficult to comply with, especially for families with children and those of limited financial means. Conditions of release should be subject to judicial review.
3. The US Congress should pass legislation to ensure that all immigrants and asylum seekers have access to individualized hearings on the lawfulness, necessity, and appropriateness of detention.
4. The US government should ensure the adoption of enforceable human rights detention standards in all detention facilities that house immigration detainees, either through legislation or through the adoption of enforceable policies and procedures by the Department of Homeland Security. There should be effective independent oversight to ensure compliance with detention standards and accountability for any violations.

[JURIST] The US Senate Judiciary Committee [official website] held a hearing Tuesday to investigate "abusive credit card practices and bankruptcy" [hearing materials]. The hearing, chaired by Senator Sheldon Whitehouse (D-RI) [official website], was held in conjunction with the proposed Consumer Credit Fairness Act (CCFA) [S. 257 text, PDF], which would disallow bankruptcy claims for consumer credit card debt bearing high interest rates. The Senate committee heard testimony from individuals affected by high credit card interest rates, as well as from experts including law professors Adam Levitin and Mark Scarberry and researcher David John [testimonies, text]. In his opening remarks, Whitehouse said:

I have introduced legislation that would give consumers leverage to negotiate for reasonable rates with their lenders and ban abusive lenders from using the bankruptcy court system to enforce their claims. Under the Consumer Credit Fairness Act, or CCFA, claims in bankruptcy stemming from consumer credit agreements carrying interest above a variable threshold – currently 18.5% – would be disallowed. With the leverage of a bankruptcy threat, a customer struggling under a 30% penalty rate could negotiate for more reasonable terms. In addition, bankruptcy filers with debts carrying effective interest rates above the threshold would be exempt from the so-called means test, a tactic that was enacted in the bank-written 2005 reforms to make it more difficult to enter bankruptcy. In practice, the means test delays relief in bankruptcy, keeping consumers in the "sweat box" of credit card debt.

[JURIST] A judge for the US District Court for the Western District of Washington [official website] Monday ordered [order, PDF] the revision of a US government regulation [8 CFR § 245.2(a)(2)(i)(B) text] that singles out religious workers applying for permanent residency. Judge Robert Lasnik issued the order in a class action lawsuit [case materials] brought by workers who argued that waiting for the approval of an employer petition, a requirement for religious workers only, frequently resulted in the expiration of their temporary visas before they could apply for permanent residency. The government had argued that the rule was justified by a historically high rate of fraud by religious workers, but Lasnik held that imposing the requirement was beyond the attorney general's authority, under which the regulations are made:

The Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.

[JURIST] A spokesman for Israeli Prime Minister Ehud Olmert [official website] Tuesday derided a report [text, PDF; JURIST report] to the UN Human Rights Council [official website] that accused Israel of human rights violations during its recent military operations in Gaza [JURIST report]. The report, authored by UN Special Rapporteur Richard Falk [appointment release], criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region, and called for an independent investigation to determine whether Israel committed war crimes. Olmert spokesman Mark Regev told AFP Tuesday that the report was one-sided and politically motivated [AFP report], adding that Israel denies committing any war crimes. Israeli Defense Force (IDF) [official website] Chief of Staff Lt. Gen. Gabi Ashkenazi [official profile] maintained that Israeli soldiers acted morally [Ynet News report] throughout the conflict, noting that an internal investigation is underway. A US State Department (DOS) [official website] spokesman echoed Israel's view that the report was biased [DOS press briefing; AFP report], calling the rapporteur's views "anything but fair."

The IDF's conduct during the Gaza offensive has been heavily criticized by various rights groups. On Monday, Physicians for Human Rights-Israel accused [JURIST report] the IDF of violating its own code of ethics and general principles of human rights by impeding the treatment of those who needed medical care during the conflict. Last week, a group of 16 human rights investigators and judges sent an open letter [text; JURIST report] to UN Secretary-General Ban Ki-Moon and the UN Security Council calling for an investigation into alleged Israeli war crimes. 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 reportedly exploring whether the ICC has jurisdiction [JURIST report] to launch war crimes prosecutions in connection with the Gaza incidents. Israel has already begun to consider defenses against possible war crimes charges, partly based on claims [JURIST reports] that it used white phosphorus in a civilian area.

[JURIST] Honduran President Manuel Zelaya [BBC profile] announced Monday that the government will conduct a poll [decree, in Spanish] to determine whether voters are receptive to a November referendum that would establish a Constituent Assembly to draft a new constitution. Zelaya's proposed constitutional referendum has created wide controversy, even among members of his own Liberal Party of Honduras (PLH) [party website]. Zelaya's term ends in 2010, and it is suspected that the proposed changes will include extending presidential term limits. President of Congress Roberto Micheletti, who is also from the PLH, has accused Zelaya with treason to the Constitution of Honduras [text, in Spanish] and has pointed out that article 374 expressly prohibits reform by referendum or plebescite to article 384 governing the structure of government, national territory, and presidential terms. Zelaya's announcement came after meeting with the Council of Ministers, which has approved the decree for Zelaya's referendum poll. The National Institute of Statistics (INE) will conduct the poll by the last Sunday in June, asking whether voters want the question on the November ballot. Zelaya has said that he has the support [UNIVISION report, in Spanish] of the armed forces and many of the mayors across the country. The chief of the armed forces Romeo Vasquez Velasquez has said that the armed forces are willing to provide security [Hondudiario report, in Spanish] for the 10,000 polling boxes to carry out Zelaya's decree, pending analysis of the legality of such an action.

Under Zelaya's leadership, Honduras has joined Cuba, Bolivia, Ecuador, and Nicaragua in the Bolivarian Alternative for the Americas (ALBA) [RIE bacgrounder] trade bloc, which was founded by Venezuelan President Hugo Chavez. In recent years, Chavez in Venezuela [JURIST report] and Ecuadorian President Rafael Correa [JURIST report] have succeeded in passing constitutional reforms extending presidential terms and enhancing presidential powers.

[JURIST] The US Environmental Protection Agency (EPA) [official website] submitted a "Proposal for Endangerment Finding for Greenhouse Gases Under the Clean Air Act" to the Office of Information and Regulatory Affairs (OIRA) [official website] of the Office of Management and Budget (OMB) [official website], setting the stage for the first ever federal regulation of greenhouse gases. The proposal, which was submitted Friday and has not been made public, is expected to lead to a decision by President Barack Obama [official profile] to regulate the emission of greenhouse gases under the federal Clean Air Act [text, PDF]. Submission of an agency rule to OIRA for review is typically the final step in the federal administrative rulemaking process, and can be an indication that a rule is nearing public announcement [NYT report]. Environmental interest and advocacy groups called the EPA proposal groundbreaking and historic [Washington Post report].

The regulation of greenhouse gases under the Clean Air Act has been the subject of considerable controversy and litigation in recent years. Earlier this month, the EPA held a hearing [JURIST report] to reconsider California's request to regulate automobile greenhouse gases. The request had been denied by the EPA during the administration of former president George W. Bush. In July, a US House of Representatives report revealed that the Bush administration abandoned plans to use the Clean Air Act to regulate greenhouse gases on power plants and other stationary pollution sources after opposition from the oil industry [JURIST report]. In April 2007, the US Supreme Court ruled that the EPA had the authority [JURIST report] under the Clean Air Act to regulate the emission of greenhouse gases by automobiles.