April 2009 Archives


Senate judiciary committee chair asks Bybee to testify on interrogation memos
Jaclyn Belczyk on April 30, 2009 1:46 PM ET

[JURIST] Chairman of the US Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile; JURIST news archive] on Wednesday invited [press release and letter] former head of the Office of Legal Counsel (OLC) [official website] and federal judge Jay Bybee [official profile], who signed off on memos detailing the legal rationale for enhanced interrogation techniques, to testify before the committee. Leahy wants Bybee to explain apparently contradictory statements in which Bybee expressed regret [Washington Post report] for signing the memos and then defended [NYT report] his actions. Leahy wrote:

By coming forward to testify, you will be able to explain your position with regard to these matters, including your involvement and your knowledge regarding how these memos were written and approved, what considerations went into that process, who was consulted in that process and the roles of various individuals.
Bybee has not yet commented [AP report] on Leahy's invitation.

As former head of the OLC, Bybee signed off on a recently released [JURIST report] memo [text, PDF] authorizing the use of enhanced interrogation techniques. Leahy called for Bybee's resignation [AFP report] from the US Court of Appeals for the Ninth Circuit [official website] after the memo was released. Bybee also signed off on a previously released controversial memo [text, PDF] that defined torture as physical pain equivalent in "intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death." Earlier this week, Leahy reiterated his calls for a non-partisan truth commission [JURIST report] to investigate Bush administration officials responsible for authorizing certain interrogation techniques during an interview [transcript, PDF] with CBS. Leahy initially called for the creation of a truth commission in February and then again [JURIST reports] during a Judiciary Committee hearing in March.

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Rights group urges Mexico to hold soldiers accountable for human rights abuses
Jaclyn Belczyk on April 30, 2009 11:51 AM ET

[JURIST] The Mexican military is failing to hold its members accountable for human rights abuses, according to a report [text, PDF; press release] released Wednesday by Human Rights Watch (HRW) [advocacy website]. According to the report, the use of the military by President Felipe Calderon [official website] to combat drug cartels has resulted in human rights violations by soldiers, including killings, torture, rapes, and arbitrary detentions. The report states that these abuses have gone unpunished, with no convictions resulting from any investigations. The report underscores the importance of holding human rights violators accountable:

Such horrific abuses directly undermine the goal of stopping drug-related violence and improving public security. The army is currently deployed in the areas of the country most torn by drug-related violence. It would be in the military’s best interest to act and be seen to act in a manner that is professional and respectful of civilians and human rights. When soldiers commit serious human rights crimes, they damage that image, alienating civilians and generating distrust and fear of the army in populations that otherwise are best placed to assist law enforcement efforts. The abuses also run counter to one of the main purposes that
the armed forces are charged with serving in public security operations: enforcing the law and protecting members of the public—not harming them.
HRW recommends moving investigations of military personnel to the civilian justice system.

HRW has previously criticized [JURIST report] Mexico's National Human Rights Commission (CNDH) [official website, in Spanish] for not doing enough to promote remedies and reforms needed to end abuses. Last year, in a report to the Mexican National Congress, CNDH accused the military of committing grave human rights abuses [JURIST report], including the torture, rape and murder of civilians. Amnesty International (AI) [advocacy website] also sent a letter [text, PDF] to Calderon raising concerns about human rights violations committed by military personnel.

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Last chance to vote for JURIST in the 2009 Webby Awards!
Jaclyn Belczyk on April 30, 2009 11:30 AM ET

[JURIST] JURIST has been nominated in New York for a prestigious Webby Award as the best Law website of 2009. By virtue of being a nominee, JURIST is eligible for the Webby People's Voice award in addition to the judge's award. We hope you'll support JURIST and our staff of dedicated law students by voting for us! This your last chance to vote, as polls close Thursday, April 30.

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DOJ urges end to cocaine sentencing disparity
Steve Czajkowski on April 30, 2009 11:07 AM ET

[JURIST] Officials from the US Department of Justice (DOJ) [official website] said Wednesday that Congress should eliminate the sentencing disparities [recorded audio] between crimes committed involving crack and powder cocaine. The statements came during a hearing [materials] of the Senate Judiciary Subcommittee on Crime and Drugs [official website]. Assistant Attorney General for the Criminal Division Lanny Breuer [official profile] testified that the disparity in sentencing guidelines has only increased the strain on the US prison system and has undermined the trust in the justice system, particularly among minorities where sentences for crack cocaine more common. Breuer and others also testified that the differences in sentences, which were instituted in 1986, were based on an incorrect belief that crack cocaine users were more violent and more damaging to society than powder cocaine users.

The sentencing issue was previously addressed by the US Sentencing Commission (USSC) [official website] in 2007 when it voted unanimously [JURIST report] to give retroactive effect to an earlier amendment to the Federal Sentencing Guidelines [USSC materials] that reduced penalties for crack cocaine offenders [press release]. The amendment, which took effect on November 1, 2007, was intended to narrow the disparity between sentences for powder and crack cocaine offenses. According to a study [text, PDF] released [JURIST report] by the USSC in April 2008, more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under the amendment.

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Obama affirms position that waterboarding is torture, defends banning technique
Jaclyn Belczyk on April 30, 2009 10:27 AM ET

[JURIST] US President Barack Obama [official website] reaffirmed [press conference transcript] Wednesday his position that the controversial interrogation technique known as waterboarding amounts to torture [JURIST news archives] and defended his decision to ban use of the technique [JURIST report]. Speaking at a press conference marking his first 100 days in office, Obama again said that the US has "rejected the false choice between our security and our ideals by closing the detention center at Guantanamo Bay and banning torture without exception," affirming a statement from his inaugural address [text; JURIST report]. In response to a question about waterboarding, Obama said:

What I've said - and I will repeat - is that waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic. And that's why I put an end to these practices. I am absolutely convinced it was the right thing to do - not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.
Obama also said that memos that former vice president Dick Cheney and others have urged [Washington Post report] him to release do not prove that the American people are safer as a result of the use of enhanced interrogation techniques.

Last week, US Attorney General Eric Holder [official profile] testified [webcast] in front of a House Appropriations subcommittee [official website] that he is willing to release as much information as possible [JURIST report] in regards to interrogation techniques used on Guantanamo Bay [JURIST news archive] detainees. Holder said that the recent release of four CIA interrogation memos [JURIST report] was not being done selectively to advance a political agenda. Since the release of the memos outlining the legal rationale for interrogation techniques, pressure has mounted on the Obama administration to investigate and prosecute responsible Bush administration officials. Earlier this week, Democratic members of the US House Judiciary Committee [official website] sent a letter to Holder [JURIST report] urging him to appoint a special counsel to investigate allegations of torture [press release and letter text] against Bush administration officials, and chairman of the Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile] reiterated his calls for a non-partisan truth commission [JURIST report] to investigate Bush administration officials responsible for authorizing certain interrogation techniques during an interview [transcript, PDF] with CBS.

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House passes bill expanding hate crimes protection for gender and sexual orientation
Steve Czajkowski on April 30, 2009 9:55 AM ET

[JURIST] The US House of Representatives [official website] on Wednesday approved a bill [HR 1913 materials] that would expand protection from hate crimes [JURIST news archive] by broadening the category of violations defined in the current law. The bill, which was approved by a vote of 249-175 [roll call vote], would expand the definition of hate crimes to include attacks based on gender, sexual orientation, gender identity, or disability of a victim. The current federal hate crime law only protects crimes committed based on race, religion, color, or national origin. The legislation also includes a provision which directs the US attorney general [official website] to give priority to providing assistance in cases where an offender has committed a hate crime in more than one state and cases in rural jurisdictions. While the bill did meet some opposition, it had support of President Barack Obama [official profile], who said in statement [text] prior to the vote, "I urge members on both sides of the aisle to act on this important civil rights issue by passing this legislation to protect all of our citizens from violent acts of intolerance – legislation that will enhance civil rights protections, while also protecting our freedom of speech and association."

In 2007, the House had approved [JURIST report] a similar bill [text, PDF; HR 1592 summary], and the US Senate [official website] also passed [JURIST report] similar legislation in the form of an amendment to the 2008 Senate Defense Reauthorization Bill [HR 1585 materials]. However, the broadened language was ultimately removed [JURIST report] during House and Senate negotiations.

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Lawyers urge release of Guantanamo detainees captured as juveniles
Jaclyn Belczyk on April 30, 2009 9:18 AM ET

[JURIST] Lawyers for two Guantanamo Bay [JURIST news archive] detainees who were captured as juveniles called for their release Wednesday, the same day as the UN Security Council [official website] held an open meeting on children in armed conflict. Lawyers for Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive], who was 14 or 15 when he allegedly killed a US soldier with a grenade in Afghanistan, and Mohammed Jawad [DOD materials; JURIST news archive], who was 16 or 17 when he allegedly injured soldiers with a grenade, argued [AP report] that their clients' detention violates the UN Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [text], to which the US is a signatory. The protocol prohibits a juvenile from being considered a member of an armed group. The lawyers urged the US government to take action at home as it seeks to protect children around the world, pointing to the statement [text] of US ambassador to the UN Susan Rice [official profile] at the Security Council meeting Wednesday, in which she said, "The United States is deeply committed to the welfare of children, and that includes protecting children from the scourge of war." UN Secretary-General Ban Ki-Moon [official website] also delivered an address [text] in which he urged the Security Council to expand a 2005 resolution to better protect children against physical and sexual violence.

Khadr's lawyers have previously argued [JURIST report] that his continued detention violates the optional protocol. In January, US President Barack Obama issued an executive order [text; JURIST report] ordering the closure of the Guantanamo Bay prison facility and halting military commission [JURIST news archive] proceedings, including Khadr's military commission. Khadr's lawyers have proposed a plan for his repatriation to Canada, and last week, a Canadian judge ordered [JURIST reports] Prime Minister Stephen Harper [official website] to seek Khadr's release and repatriation. Also last week, a judge in the US District Court for the District of Columbia [official website] ordered [text, PDF; JURIST report] that Jawad be allowed to challenge his detention in federal courts without delay.

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Spain judge opens investigation into Guantanamo torture allegations
Steve Czajkowski on April 30, 2009 7:51 AM ET

[JURIST] Spanish judge Baltazar Garzon [BBC profile; JURIST news archive] on Wednesday decided [writ, PDF, in Spanish] to initiate an investigation into torture allegations at Guantanamo Bay [JURIST news archive] made by four former prisoners held at the facility. Garzon said he based his decision on statements from Hamed Abderrahman Ahmed, Lahcen Ikassrien, Jamiel Abdul Latiff Al Banna, and Omar Deghayes, who claim they were subject to various forms of physical and mental abuse [El Pais report, in Spanish] during their imprisonment. Garzon also said that recently released CIA interrogation memos [JURIST report] detailed what had been previously suspected, a plan which authorized the systematic torture and mistreatment of persons who were deprived the basic rights of detainees. According to Garzon, the alleged abuse violates the Geneva Conventions [ICRC materials], the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [UN materials], and other international treaties. Additionally, Garzon said the investigation is authorized under Spain's concept of universal jurisdiction [AI backgrounder], which allows a Spanish court to pursue certain types of cases, such as torture, outside its national borders, but only when legal action has not already commenced [AFP report] within the other country involved.

The investigation is unrelated to Garzon's earlier request for Spanish prosecutors to examine the US lawyers [JURIST report] reportedly behind the establishment of the Guantanamo Bay detention center. Garzon's request came after a criminal complaint [text, PDF, in Spanish] was filed [Publico report, in Spanish] in the Audiencia Nacional [official website] against six lawyers from the administration of former US president George W. Bush, including David Addington, John Yoo, and former attorney general Alberto Gonzales. Earlier this month Spanish prosecutors announced that they would not recommend trying any of the named defendants [JURIST report] because they had not committed acts of torture. Last week, Garzon was replaced [JURIST report] by Eloy Velasco after Garzon recommended that the provisional case of whether to pursue legal action be assigned to an investigating magistrate.

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UK court sentences accused London transit bombers on lesser charges
Ingrid Burke on April 29, 2009 4:58 PM ET

[JURIST] A UK judge sentenced two of the three men acquitted [JURIST report] of conspiracy charges relating to the July 7, 2005 London Transit Bombings [BBC backgrounder] to seven years in prison Wednesday on lesser charges. Mohammed Shakil and Waheed Ali were sentenced [Reuters report] for having allegedly planned to attend a terrorist training camp in Pakistan. Shakil, Ali, and Sadeer Saleem were found not guilty [BBC report] of being privy to the conspiracy during a retrial after a mistrial was declared last fall when the jury could not reach a verdict. The three men were the only ones on trial for the attacks, despite evidence that pointed to the involvement of a larger group than just those who carried out the attacks. All three took a trip to London in December 2004 with two of the suicide bombers to visit a relative of Ali, where they visited tourist spots. The trip was seen as a likely scouting trip for the eventual attacks. Shakil and Ali were found guilty of attending a terrorist-training camp [MPS press release] in Malakand, Pakistan, where both knew Mohammad Siddique Khan, the orchestrator of the attacks. Attending a terrorist camp was made illegal under the Terrorist Act of 2006. Shakil and Ali will be sentenced Wednesday.

The three men were arrested in May 2007 and pleaded not guilty [JURIST reports] that August. The attacks of July 7, 2005, caused the deaths of 52 people when suicide bombers unleashed themselves on the public transit system in London at the height of the morning rush hour. The attacks were traced back to a tight-knit group who attended a mosque in Leeds, where Shakil, Ali, and Saleem also worshiped. Al Qaeda claimed responsibility [JURIST report] for the attacks two months later.

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Federal court sentences Fort Dix conspirators to life in prison
Jaclyn Belczyk on April 29, 2009 4:24 PM ET

[JURIST] The five men convicted of plotting to kill US soldiers at Fort Dix [official website] have been giving sentences ranging from 33 years to life in prison. Mohamad Ibrahim Shnewer was given a life sentence [UPI report] by a federal judge at the US District Court for the District of New Jersey [official website] Wednesday, and Serdar Tatar was sentenced to 33 years. On Tuesday, brothers Dritan Duka, Eljvir Duka, and Shain Duka were each sentenced to life in prison. The five men were convicted [DOJ press release; JURIST report] in December 2008 of conspiracy to commit murder and weapons offenses, but were acquitted of attempted murder. Their guilty verdicts [text, PDF] were upheld [JURIST report] last month.

Federal prosecutors maintained that although the men had no ties to any terrorist organization, they were inspired by al Qaeda and Osama bin Laden and were planning an attack. The five suspects were arrested [JURIST report] in May 2007 for allegedly plotting to sneak onto the New Jersey military base and kill soldiers. They pleaded not guilty [JURIST report] in January 2008. Their trial began [JURIST report] in October. In March 2008, an accomplice, Agron Abdullahu, was sentenced [JURIST report] to 20 months in prison after pleading guilty [JURIST report] to charges of conspiring to provide firearms and ammunitions to the other five men.

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New Hampshire Senate passes same-sex marriage bill
Jaclyn Belczyk on April 29, 2009 3:49 PM ET

[JURIST] The New Hampshire Senate [official website] voted 13-11 Wednesday to approve a bill [HB 436 text] that would permit same-sex marriage [JURIST news archive] in the state. The New Hampshire House of Representatives [official website] approved the bill [JURIST report] last month by a vote of 186-179. The bill was amended on the Senate floor to distinguish between civil and religious marriage [Union Leader report]. The bill must now be reconciled between differing House and Senate versions before going before Governor John Lynch (D) [official website], who has not indicated whether he will veto it [Reuters report]. Lynch has expressed opposition to the bill, saying that the New Hampshire civil union law [JURIST report] passed in 2007 provides the same legal protections for same-sex couples.

The New Hampshire attorney general was one of 10 state attorneys general to petition the Supreme Court of California to postpone implementation of its decision [JURIST reports] to allow same-sex marriages in that state. The New Hampshire same-sex civil union law, which took effect in 2008 [JURIST report], allows same-sex couples to enter into civil unions with the "same rights, responsibilities, and obligations as married couples." In 2005, a New Hampshire Senate commission on same-sex marriages voted to recommend [JURIST report] that the state not allow same-sex couples to marry, not recognize out-of-state same-sex marriages, and not establish a domestic partner registry.

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Supreme Court hears voting rights case at end of 2008 arguments term
Jaclyn Belczyk on April 29, 2009 3:19 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard its final oral arguments [day call, PDF; briefs] for the 2008 term Wednesday. In Northwest Austin Municipal Utility District Number One v. Holder [oral arguments transcript, PDF; JURIST report], 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. Counsel for the municipality argued:

After more than 20 years of steadfast compliance with the Voting Rights Act, Northwest Austin MUD Number One is entitled to be free from the intrusive burdens of preclearance. ... This natural parallelism between bailout and preclearance allows bailout to serve its ameliorative purposes of encouraging, recognizing, and rewarding long-term compliance and progress.
Counsel for the respondent argued:
Congress's reauthorization in 2006 was the paradigmatic attempt of what to do in Congress. It didn't redefine a rate, nor did it cast aspersions at Supreme Court doctrine. Rather, it took that doctrine seriously, both this Court's teachings with respect to the Voting Rights Act specifically, as well as the - as the scope of the Congress's Reconstruction enforcement powers, and arrived at a considered judgment. After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined that their work was not done.
The Court released [press release, DOC] an audio recording of the argument shortly after its conclusion.

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UN Lebanon tribunal orders release of 4 generals accused in Hariri assassination
Ingrid Burke on April 29, 2009 3:02 PM ET

[JURIST] A judge for the UN Special Tribunal for Lebanon (STL) [official website] ordered the release of four generals [UN News Centre report] who had been held on suspicion of their involvement in the February 2005 suicide bombing that killed former Lebanese prime minister Rafik Hariri [JURIST news archive] and 22 others. The court's pre-trial decision came after prosecutor Daniel Bellemare announced Monday that he was declining to seek a continuation of the generals' nearly four-year detention because of a lack of evidence and due to the legal principle of presumed innocence. The generals' release was celebrated with cheers and fireworks throughout Beirut. General Jamil El-Sayed delivered the following speech [in Arabic] upon his release:



Earlier this month, STL Pre-trial Judge Daniel Fransen ordered [UN News Centre report] Bellemare to submit either a reasoned request for the continued detention of the four generals or a declination thereof. A Lebanese judge ordered the transfer of documents [JURIST report] relating to Hariri’s assassination to the STL early this month, thereby granting sole jurisdiction over the case against the four accused generals to the tribunal. In March 2008, lead prosecutor Daniel Bellemare [Ya Libnan profile] said he believed a criminal network was behind the assassination [JURIST report]. The investigation into the assassination has been extended past its original anticipated end date and expanded [JURIST reports] to cover other assassinations in the country. Several reports from the International Independent Investigation Commission (IIIC) [authorizing resolution; UN materials], also headed by Bellemare, have implicated Syrian officials [JURIST report] in Hariri's death.

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US AG to ask European countries to accept Guantanamo detainees within weeks
Jaclyn Belczyk on April 29, 2009 2:37 PM ET

[JURIST] US Attorney General Eric Holder [official profile] said Wednesday that the US has cleared 30 Guantanamo Bay [JURIST news archive] detainees for release and will begin formally requesting that European countries accept them within weeks. During a European tour, Holder told reporters in Germany that no formal requests have been made [AFP report], but that he has been encouraged by the generally positive responses he has received thus far. Holder met with several European officials [AP report] Tuesday for preliminary talks on accepting detainees. European leaders reiterated their request for full background information [JURIST report] on any detainee they were asked to accept.

Earlier this week, Holder met with UK Justice Minister Jack Straw [official profile], who said that his country would still be willing to consider a US request to take in Guantanamo Bay detainees if doing so would aid in the closure of the facility. Earlier this month, France agreed [JURIST report] to accept one Guantanamo detainee. Last month, top officials from the Obama administration met with leaders from the European Union (EU) [official website] to discuss preliminary plans to transfer [JURIST report] Guantanamo Bay detainees to European countries. Individual member states have also indicated their openness to accepting detainees, including Lithuania, Ireland, Germany, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain, while Italy [JURIST reports] and the Netherlands [AFP report] have said they will not accept detainees.

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US Army soldier who fled to Canada to avoid Iraq service pleads guilty to desertion
Jaclyn Belczyk on April 29, 2009 1:36 PM ET

[JURIST] A US Army soldier who fled to Canada to avoid serving in the Iraq war pleaded guilty Tuesday to charges of desertion. Spc. Cliff Cornell [advocacy profile] was sentenced to one year in prison [AP report] at a court-martial proceeding and was also given a bad conduct discharge. Cornell spent four years in Canada, but was denied asylum by the Canadian government in February. Canadian advocacy group War Resisters Support Campaign [advocacy website] decried Cornell's sentence, calling the Iraq War "illegal and immoral." Cornell had reportedly become actively involved [Montreal Gazette report] with the group.

Several other US soldiers have sought asylum in Canada. In 2005, US Army Pvt. Brandon Hughey [advocacy website], who fled to Canada after refusing a deployment order to Iraq and deserting his unit at Fort Hood, formally asked [JURIST report] the Canadian Immigration and Refugee Board [official website] for asylum. Hughey's application was denied, and he is currently waiting to find out whether he will be allowed to remain in Canada. Several others are also appealing denials of asylum.

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DOJ to investigate antitrust implications of Google book search settlement agreement
Jaclyn Belczyk on April 29, 2009 12:09 PM ET

[JURIST] Officials from the US Department of Justice (DOJ) [official website] said Tuesday that the DOJ has begun looking into whether a settlement agreement [text, PDF; JURIST report] involving Internet search company Google, Inc. [corporate website] over two copyright infringement lawsuits stemming from its book-scanning initiative [Google Book Search website] violates antitrust laws. The two lawsuits were brought against Google by the Authors Guild [advocacy website], an advocacy group seeking to preserve copyright protection for authors, and by other plaintiffs including the Association of American Publishers (AAP) [organization website], the McGraw-Hill Companies, Inc., Penguin Group (USA), Inc., and Simon & Schuster, Inc. [corporate websites]. Under the terms of the settlement agreement, which was reached in October, Google would pay $125 million to authors and publishers of copyrighted works. In return, Google would be allowed to display online up to 20 percent of the total pages of a copyrighted book, and would offer users an opportunity to purchase the remainder of any viewed book. DOJ lawyers have notified the parties to the settlement [NYT report] about the inquiry and have spoken with groups opposed to the settlement. The DOJ will not necessarily oppose the settlement, which still awaits court approval. Also Tuesday, the federal judge overseeing the case extended the deadline from May 5 to September 4 for authors to decide whether to join in the settlement.

The two lawsuits were originally brought against Google in 2005. In September 2005, The Authors Guild alleged [JURIST report] "massive copyright infringement at the expense of the rights of individual writers." The lawsuit accused Google of engaging in unauthorized scanning and copying of books through its Google Print Library Project [Google backgrounder; advocacy copyright analysis, PDF]. The AAP lawsuit, filed in October 2005 [JURIST report], alleged that Google infringed copyrights held by a number of publishing companies when it scanned the entire book collections of several universities to make them searchable online.

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Supreme Court rules statement to jailhouse informant can be used for impeachment
Jaclyn Belczyk on April 29, 2009 11:11 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 7-2 in Kansas v. Ventris [Cornell LII backgrounder; JURIST report] that a defendant's statement made without a knowing and voluntary waiver of his Sixth Amendment right to counsel may be used for impeachment purposes. The defendant made statements to a jailhouse informant that were later used to impeach his credibility. The Kansas Supreme Court ruled [opinion text] that such statements may not be used for any purposes, including impeachment purposes. In overturning the decision below, Justice Antonin Scalia wrote, "We have held in every other context that tainted evidence — evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid — is admissible for impeachment. We see no distinction that would alter the balance here." Justice John Paul Stevens filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg.

The Court ruled [opinion, PDF] 7-2 in Dean v. United States [Cornell LII backgrounder; JURIST report] that the accidental discharge of a firearm during the commission of a felony crime subjects a defendant to a 10-year minimum sentence for the crime. Under 18 USC § 924(c)(1)(A)(iii) [text], the increased sentence attaches when a firearm is discharged, but the defendant argued that there must also be some showing that the discharge was intentional. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] that the defendant should be subjected to the 10-year minimum sentence requirement. In an opinion by Chief Justice John Roberts, the Court affirmed the decision below: "Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident." and Justice Stephen Breyer filed dissenting opinions.

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House Democrats urge AG to name special counsel to probe Bush interrogation policies
Jaclyn Belczyk on April 29, 2009 10:31 AM ET

[JURIST] Members of the US House Judiciary Committee [official website] on Tuesday sent a letter to Attorney General Eric Holder [official profile] urging him to appoint a special counsel to investigate allegations of torture [press release and letter text] against Bush administration officials. The letter, which was signed by committee chairman John Conyers (D-MI), Rep. Jerrold Nadler (D-NY) [official websites], and 14 other Democratic members of the committee, called on Holder to prosecute responsible officials where appropriate:

As you are aware, Justice Department regulations provide for the Attorney General to appoint an outside special counsel when: 1) a "criminal investigation of a person or matter is warranted," (2) the "investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department," and 3) "it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter." Such counsel is to be appointed from outside the government and should have the authority to secure resources for the investigation and prosecution and have full investigatory and prosecutorial powers.

We believe that these three criteria have been met and warrant the appointment of a special counsel to investigate whether federal criminal laws were violated by individuals who authorized or participated in the interrogation of detainees.
No Republican committee members signed the letter. A Department of Justice (DOJ) [official website] spokesperson said that the letter will be reviewed [AP report].

Earlier this week, chairman of the Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile; JURIST news archive] reiterated his calls for a non-partisan truth commission [JURIST report] to investigate Bush administration officials responsible for authorizing certain interrogation techniques during an interview [transcript, PDF] with CBS. Last week, the Senate Select Committee on Intelligence [official website] released a report [text; JURIST report] by the DOJ indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice in 2002 approved the use of waterboarding and other extreme interrogation techniques used by CIA agents against Guantanamo Bay [JURIST news archives] detainees. The report supports many of the conclusions of a Novemeber Senate Armed Services Committee (SASC) [official website] report [text, PDF; JURIST report] detailing the extent of top Bush administration officials' involvement in implementing the techniques, which was declassified [JURIST report] last week. Calls for an independent investigation of Bush administration interrogation policies have intensified recently, after the Obama administration released four top secret memos [JURIST report] outlining the legal rationale behind controversial techniques. Conyers has previously called for an independent investigation [JURIST report] into Bush administration policies, releasing a final version of a report [text; PDF] earlier this month reiterating his allegations that the Bush administration engaged in numerous abuses during the "war on terror" and calling on Holder to appoint a special prosecutor to determine whether any criminal laws were violated.

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Ninth Circuit rejects state secrets claim in rendition lawsuit against Boeing subsidiary
Jaclyn Belczyk on April 29, 2009 8:39 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Tuesday that the state secrets privilege [JURIST news archive] does not bar a lawsuit against a company that allegedly provided logistical support for CIA rendition [JURIST news archive] flights. Plaintiffs Binyam Mohamed [Reprieve profile; JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi allege that Jeppesen Dataplan [corporate website], a wholly owned subsidiary of Boeing [corporate website], knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. The US Department of Justice (DOJ) [official website] intervened [JURIST report] in 2007 before the defendant filed an answer, arguing that the lawsuit posed a risk to national security. In overturning the lower court's dismissal of the case [JURIST report], the Ninth Circuit ruled that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved in the case:

Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.
The American Civil Liberties Union (ACLU) [advocacy website], which filed the suit [JURIST report] on plaintiffs' behalf, welcomed [press release] Tuesday's ruling, saying, "[t]his historic decision marks the beginning, not the end, of this litigation."

In February, the Obama administration reasserted the state secret privilege [JURIST report] in the case, drawing criticism from advocacy groups including the ACLU. On the same day, Attorney General Eric Holder [official profile] ordered a review of all government claims invoking the state secrets privilege. The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance [JURIST news archive]. In September, a secrecy "report card" [text, PDF; JURIST report] released by OpenTheGovernment.org [advocacy website] revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."

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Nigeria court-martial sentences 27 UN peacekeeping soldiers to life imprisonment
Adrienne Lester on April 29, 2009 7:29 AM ET

[JURIST] A court-martial in Nigeria [JURIST news archive] sentenced 27 UN peacekeeping troops to life imprisonment Tuesday. The soldiers of the 14th Nigerian Battalion were convicted of mutiny [Vanguard report] under the Armed Forces Act 2004 [text] for staging street demonstrations in protest of a shortfall in their UN allowances for a Nigerian peacekeeping mission. The protesting soldiers alleged finance officers in the Nigerian Army [official website] stole their extra UN pay. Five of the officers convicted and sentenced were finance officers held vicariously liable for the protests. The sentences are must be confirmed by Nigerian authorities. The soldiers' lawyer anticipates appealing the judgment [AP report].

UN Peacekeeping [official website] missions have increasingly come under international criticism [CBC report] for being underfunded, understaffed, and underprepared. Although many larger nations continue to fund peacekeeping missions, fewer and fewer nations are willing to send troops. Currently there are 16 UN peacekeeping missions worldwide, including several in Africa.

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Supreme Court hears arguments in IDEA, federal banking regulation cases
Jaclyn Belczyk on April 28, 2009 3:33 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in two cases. In Forest Grove School District v. T.A. [oral arguments transcript, PDF; JURIST report], the Court will consider whether the Individuals with Disabilities Education Act (IDEA) [text] permits a tuition reimbursement award against a school district and in favor of parents who unilaterally place their child in private school, where the child had not previously received special education and related services under the authority of a public agency. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that such reimbursement is not barred. Counsel for the school district argued, "[t]he 1997 amendments to IDEA prohibit tuition reimbursement awards for students who are unilaterally placed in private school without first having received special education services from the public school district. This is so under ordinary principles of statutory construction..." Counsel for the respondent argued:

The school district in this case improperly denied T.A., a child with a disability who had always been enrolled in public schools, access to all public special education services. It asserts that because its wrong eligibility determinations prevented T.A. from receiving special education services, it is immune from reimbursing T.A.'s parents the cost of obtaining those services from another source.
The Court also heard arguments in Cuomo v. Clearing House Association [oral arguments transcript, PDF; JURIST report], in which it will consider whether the New York state attorney general is permitted to take certain measures to enforce state fair lending law against national banks by subjecting those entities to "visitorial powers" under the National Bank Act (NBA) [12 USC § 484(a) text] and 12 CFR § 7.4000 [text]. The regulation was issued by the Office of the Comptroller of Currency (OCC) [official website], interpreting § 484(a) to preempt state enforcement of state laws against national banks. The US Court of Appeals for the Second Circuit held [opinion, PDF] that the attorney general's actions were not permitted. Counsel for the attorney general argued:
Under the OCC regulation at issue here, State anti-discrimination and consumer protection laws can be enforced against national banks by the Federal OCC and by private parties, but not by State attorneys general. This unusual enforcement preemption, which detaches the State's power to make laws from its power to enforce them, was not written into the National Bank Act by Congress in 1864, and it's implausible that Congress implicitly delegated to OCC the power to read it in now.
Counsel for respondent Clearing House Association argued that "[s]ection 484 plainly has preemptive effect."

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Europe court rules for Greek Cypriot in Northern Cyprus land ownership dispute
Adrienne Lester on April 28, 2009 2:58 PM ET

[JURIST] The European Court of Justice (ECJ) [official website] ruled [press release, PDF; case materials] Tuesday that a judgment by a southern Cyprus court favoring a Greek Cypriot reclaiming land in the north is enforceable despite the south's lack of control over that region. Meletis Apostolides, a Cypriot national whose family was forced from land in the north during the partition of the island, brought suit against a British couple who had purchased the land from a third party to build a vacation home. The ECJ determined Apostolides to be the rightful owner of the land, which will likely lead to additional legal claims by similarly situated Greek Cypriots. In turn, this could increase opposition to reunification [BBC report] by Turkish Cypriots.

Tensions between ethnic Turks and Greeks in Cyprus [JURIST news archive] have long been high. Cyprus split into two areas, the Greek controlled south and the Turkish controlled north [TRNC website], when Turkey invaded the island in 1974 to quell a coup by supporters of a union with Greece. Attempts to reunite the island have thus far been unsuccessful. In 2004, Turkish and Greek negotiators failed to agree [JURIST report] on a plan to reunify Cyprus ahead of its entry into the EU. Despite the failure, Cyprus was one of 10 new members that joined the EU in May 2004 [EU enlargement website]. Currently, northern Cyprus is self-governed, the region is occupied by the Turkish army, and it is not recognized internationally.

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Vote for JURIST in the 2009 Webby Awards!
Jaclyn Belczyk on April 28, 2009 2:50 PM ET

[JURIST] JURIST has been nominated in New York for a prestigious Webby Award as the best Law website of 2009. By virtue of being a nominee, JURIST is eligible for the Webby People's Voice award in addition to the judge's award. We hope you'll support JURIST and our staff of dedicated law students by voting for us! Polls close Thursday, April 30.

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UK jury acquits men accused in 2005 London transit bombings
Amelia Mathias on April 28, 2009 2:49 PM ET

[JURIST] A UK jury acquitted Tuesday three alleged conspirators to the July 7, 2005 bombings in London [BBC backgrounder]. Mohammed Shakil, Waheed Ali, and Sadeer Saleem were found not guilty [BBC report] of being privy to the conspiracy during a retrial after a mistrial was declared last fall when the jury could not reach a verdict. The three men were the only ones on trial for the attacks, despite evidence that pointed to the involvement of a larger group than just those who carried out the attacks. All three took a trip to London in December 2004 with two of the suicide bombers to visit a relative of Ali, where they visited tourist spots. The trip was seen as a likely scouting trip for the eventual attacks. Shakil and Ali were found guilty of attending a terrorist-training camp [MPS press release] in Malakand, Pakistan, where both knew Mohammad Siddique Khan, the orchestrator of the attacks. Attending a terrorist camp was made illegal under the Terrorist Act of 2006. Shakil and Ali will be sentenced Wednesday.

The three men were arrested in May 2007 and pleaded not guilty [JURIST reports] that August. The attacks of July 7, 2005, caused the deaths of 52 people when suicide bombers unleashed themselves on the public transit system in London at the height of the morning rush hour. The attacks were traced back to a tight-knit group who attended a mosque in Leeds, where Shakil, Ali, and Saleem also worshiped. Al Qaeda claimed responsibility [JURIST report] for the attacks two months later.

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Madagascar soldiers raid high court to arrest supporters of ousted president
Jaclyn Belczyk on April 28, 2009 2:12 PM ET

[JURIST] Armed soldiers raided Madagascar's High Constitutional Court [official website, in French] Monday evening, arresting head of security Andrianandraina Ralitera and three other court employees. The four arrested men [L'Express report, in French], supporters of ousted president Marc Ravalomanana [BBC profile] are accused [Xinhua report] of inciting public disorder and ordering soldiers to open fire on protesters in February, resulting in the deaths of 28 [BBC report]. Journalists were later permitted into the court and shown weapons that had allegedly been stockpiled [BBC report] there.


Last month, the Constitutional Court accepted the military's decision to install [JURIST report] Andry Rajoelina [Reuters profile] as the country's new president, one day after Ravalomanana's resignation. 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 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. 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.

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UK government publishes controversial bill outlawing various forms of discrimination
Jaclyn Belczyk on April 28, 2009 12:42 PM ET

[JURIST] The UK Government Equalities Office (GEO) [official website] on Monday published [press release] a controversial Equality Bill [materials] that seeks to eliminate gender, racial, age, and other forms of discrimination. The bill, which was introduced into the House of Commons [official website] Friday, would require businesses to report on pay for men and women, outlaw age discrimination, and synthesize various other pieces of anti-discrimination laws into a single piece of legislation. Minister for Women and Equality Harriet Harman [official profile] said:

The Equality Bill is part of building a strong fair future for Britain out of the downturn. That means fairness and opportunity. Especially in tougher economic times, we need to face the problems fairly and we need to look for a fairer future. ... Though we have ensured new rights and opportunities for disabled people, for women, black and Asian people and older people – there is still unfairness and discrimination to tackle. And this Bill will take the action necessary to tackle it.
The bill has the support of many members of the ruling Labour Party, but has already been condemned [BBC report] by Conservative lawmakers as well as businesses. Director General of the British Chambers of Commerce [official website] David Frost said [press release], "This Bill will discourage job creation and make employers fearful of the recruitment process. We already know that half of small firms struggle to navigate employment law and this will just add to the problem."

The bill was initially proposed [JURIST report] in June. The UK has made increased efforts to combat discrimination in recent years. In January 2007, then-prime minister Tony Blair announced [JURIST report] that rules under a 2006 Equality Act protecting the rights of same-sex couples to adopt children [JURIST report] will apply without exception, denying special exemptions for faith-based adoption agencies opposed to same-sex unions or homosexuality. In October 2006, an official at the UK Commission for Racial Equality [official website] warned [JURIST report] that if communication about social differences does not improve in Britain, riots could erupt there in the wake of a religious dress [JURIST news archive] debate prompted by the suspension of a Muslim UK teacher for wearing a full-face veil in the classroom.

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Supreme Court upholds FCC ban on isolated expletives
Jaclyn Belczyk on April 28, 2009 11:04 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] Tuesday ruled [opinion, PDF] 5-4 in FCC v. Fox Television Stations [Cornell LII backgrounder; JURIST report] that the Federal Communications Commission (FCC) [official website] did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. In 2004 the FCC changed its longstanding policy, saying that it would no longer permit the use of isolated expletives on the air. The FCC issued a 2006 order stressing the ban on such one-time violations. Fox Television Stations, along with other broadcasters, brought a petition for review of the FCC order before the US Court of Appeals for the Second Circuit, which ruled [opinion, PDF] that the new policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy, vacating the FCC order. In a narrow ruling reversing the lower court decision, Justice Antonin Scalia wrote:

The Second Circuit believed that children today "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech," and that this cuts against more stringent regulation of broadcasts. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to "substitute [our] judgment for that of the agency," and we find the Commission's orders neither arbitrary nor capricious.
The Court did not rule on constitutional questions, leaving that issue open. Justices John Paul Stevens and Ruth Bader Ginsburg filed dissenting opinions, and Justice Stephen Breyer filed a dissenting opinion in which Stevens, Ginsburg, and Justice David Souter joined.

The Court also ruled [opinion, PDF] 7-2 in Cone v. Bell [Cornell LII backgrounder; JURIST report] that a federal habeas court has the power to recognize that a state court erred in holding that state law precludes reviewing a claim and that a federal habeas claim is not "procedurally defaulted" because it has been presented twice to the state court. The case was brought by a Tennessee death row inmate who alleges that authorities hid mitigating evidence during his murder trial. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] against the petitioner Cone, finding "If the state court decides the petitioner's claims on an adequate and independent state ground, such as a state procedural rule, the petitioner's claims are considered procedurally defaulted and he is barred from seeking federal habeas relief." In vacating the lower court ruling and remanding, Stevens wrote:
After a complete review of the trial and postconviction proceedings, we conclude that the Tennessee courts' rejection of petitioner's Brady claim does not rest on a ground that bars federal review. Furthermore, although the District Court and the Court of Appeals passed briefly on the merits of Cone’s claim, neither court distinguished the materiality of the suppressed evidence with respect to Cone's guilt from the materiality of the evidence with respect to his punishment. While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state, the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.
Justice Clarence Thomas filed a dissenting opinion, joined by Scalia.

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Canada commission concludes Afghan detainees not abused in custody
Jaclyn Belczyk on April 28, 2009 10:08 AM ET

[JURIST] The Canadian Military Police Complaints Commission (MPCC) [official website] released a report [text, PDF] Monday concluding that three Afghan detainees were not mistreated [press release] while in Canadian military police custody in Kandahar in 2006. The probe began following a civilian complaint filed by University of Ottawa law professor Amir Attaran [faculty profile], whose research uncovered a pattern of suspicious injuries on three detainees captured in April 2006 and later released. The MPCC found:

that the allegation of inhumane treatment of the detainees by military police members is not substantiated in that: no harm was caused to the detainees by any acts or omissions on the part of the military police; and, the detainees were afforded prompt and appropriate medical care while in military police custody.
The report also found that the military police failed to investigate the cause of a head injury to one of the detainees and that they should have done so. The report recommends further study on the role of military police and more comprehensive training and research.

The Canadian government ordered the inquiry [JURIST report] in February 2007. Monday's report dealt only with allegations by Attaran. There are ongoing investigations into complaints [JURIST report] filed by Amnesty International Canada (AIC) and the British Columbia Civil Liberties Association (BCCLA) [advocacy websites]. Following public outcry, Canada signed a new agreement regarding detainee transfers [JURIST report] with the Afghan government in May 2007, giving Canada the right to inspect detainees following their transfer.

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Federal court begins trial of ex-soldier accused in Mahmudiya murder-rape case
Jaclyn Belczyk on April 28, 2009 9:15 AM ET

[JURIST] The federal trial of a former US soldier accused of raping and killing a 14-year-old Iraqi girl [JURIST news archive] in 2006 began Monday. Former US Army Pfc. Steven Green [JURIST news archive] is also charged with killing the girl's family in Mahmudiya, Iraq. During Monday's opening statements, prosecutors said [AP report] that Green raped the girl, shot her several times, and then burned her body and that he later bragged about the events. Green's defense lawyer argued [Reuters report] that Green was under extreme stress from combat conditions. Green could face the death penalty if convicted.

Green is being tried as a civilian because he was honorably discharged pursuant to a psychiatric disorder diagnosis [JURIST report] made before the Army learned of the Mahmudiya incident. Green's lawyers had previously indicated that they were considering raising an insanity defense [JURIST report]. Four soldiers [JURIST report] from the 101st Airborne Division have already been convicted in military court for crimes stemming from the Mahmudiya incident. Spc. James Barker and Sgt. Paul Cortez [JURIST reports] received prison sentences of 90 and 100 years respectively after they pleaded guilty to participating in the attack. Pfc. Bryan Howard, who stayed at the soldiers' checkpoint but had prior knowledge of the plan, was sentenced to 27 months after pleading guilty [JURIST report] in March 2007 to conspiracy to commit rape and premeditated murder and conspiracy to obstruct justice. Pfc. Jesse Spielman was sentenced to 110 years in prison after being convicted [JURIST report] in August 2007 of four counts of felony murder, rape, conspiracy to commit rape, and housebreaking with intent to commit rape. All four will be eligible for parole in 10 years.

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US releases human rights pledges in anticipation of UN council vote
Amelia Mathias on April 28, 2009 8:59 AM ET

[JURIST] The US State Department [official website] released [press release] Monday its commitments and pledges [text; PDF] as part of its campaign to gain a seat on the UN Human Rights Council (UNHRC) [official website]. All countries attempting to be elected to the body, which holds elections every year for three-year terms, are invited to outline their national commitments to human rights and how they will further those goals internationally through the UNHRC. The US pledge, which is voluntary, contains the following commitments:

1. Commitment to advancing human rights in the UN system;

2. Commitment to continue support to human rights activities in the UN system;

3. Commitment to advancing human rights, fundamental freedoms and human dignity and prosperity internationally; and

4. Commitment to advancing human rights and fundamental freedoms in the United States.
The pledge also contains monetary commitments to be made to the UN in furtherance of its human rights goals. The US has never before sought a seat on the UNHRC. Other countries likely to gain posts on the council are China, Saudi Arabia, Russia, and Cuba. Of those, only Cuba released a pledge [CNS report]. The voting, which is mostly a formality due to the lack of competition [official candidate list] in most regions besides Eastern Europe, will take place May 12.

The US announced its intent to seek a seat on the council [JURIST report] in early April, hoping to affect more change by working from inside the council than by boycotting the effort. The UNHRC was created [JURIST report] in 2006, at which time the Bush administration declined to seek a Council seat or participate in its proceedings. In February, human rights groups and politicians criticized the Obama administration for apparently continuing the Bush policy, after the State Department remained silent [JURIST report] during the most recent UNHRC universal periodic review (UPR) [materials]. State Department spokesperson Robert Wood defended the delegates' silence, saying that the US was not actively participating because the Obama administration was still deciding how it wanted to interact with the Council. Wood said that the US had representatives attending and monitoring the UPR sessions, and that its abstention from the reviews did not mean that human rights were not a priority for the administration.

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EPA to review Bush administration coal power plant emissions rules
Andrew Gilmore on April 28, 2009 8:48 AM ET

[JURIST] The US Environmental Protection Agency (EPA) [official website] announced Monday that it would review three new source review rules [EPA press release] that regulate emissions from coal power plants. The announcement comes as the EPA has stepped up its efforts to regulate greenhouse gases and other atmospheric pollutants. The rules in question were promulgated during the administration of former president George W. Bush, and were seen by many as creating loopholes [Reuters report] for coal power plants to escape regulation under the Clean Air Act [text, PDF]. The new source review rules determine when and how power plants are required to account for air emissions that are not released through a stack, vent or other confined air stream, keep records on emissions, and account for air emissions associated with fine particle pollution when obtaining a permit. The EPA's announcement comes the same day as Secretary of the Interior Ken Salazar announced his determination [DOI press release] that a rule facilitating mountaintop-stripping coal mining practices is "legally deficient," and directed the US Department of Justice (DOJ) [official website] to file a pleading with the US District Court for the District of Columbia challenging the rule. Environmental groups expressed surprise at the unexpected determination [AP report] condemning the rule, which was passed by Bush in the waning days of his presidency. In remarks announcing the determination, Salazar said [text, PDF]:

The so-called "stream buffer zone rule" from the previous Administration ... just doesn’t pass muster. ... [T]his type of 11th hour rule – issued a little over a month before the previous Administration passed office – does not adequately protect our waterways and our communities. And it just doesn’t pass the smell test.
The EPA has recently taken several steps to reverse environmental policies from the Bush administration. Earlier this month, the EPA announced a proposed finding [report, PDF; JURIST report] that atmospheric greenhouse gases endanger public health and welfare, setting the stage for government regulation of the harmful gases for the first time. Last 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 Bush administration. 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.

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UK reiterates willingness to consider US request to accept Guantanamo detainees
Andrew Gilmore on April 28, 2009 7:39 AM ET

[JURIST] UK Justice Minister Jack Straw [official profile] said Monday that his country would still be willing to consider a US request to take in terrorism detainees held by at the Guantanamo Bay [JURIST news archive] detention center, if doing so would aid in the closure of the facility. Speaking at a meeting with his US counterpart, Attorney General Eric Holder [official profile], Straw said that the UK would consider any request [Daily Mail report] made by the administration of US President Barack Obama [official profile] to take in Guantanamo detainees, in order to support Obama's decision to close [executive order; JURIST report] the controversial facility. However, Holder said that no such request [AP report] has been made.

Obama's order directed that the military prison be closed "as soon as practicable, and no later than 1 year from the date of this order." The order did not specify where detainees would go upon release, but did call for diplomatic efforts with foreign states in order to facilitate the closure of the facility. Earlier this month, France agreed [JURIST report] to accept one Guantanamo detainee. Last month, top officials from the Obama administration met with leaders from the European Union (EU) [official website] to discuss plans to transfer [JURIST report] Guantanamo Bay detainees to European countries. Individual member states have also indicated their openness to accepting detainees, including Lithuania, Ireland, Germany, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain, while Italy [JURIST reports] and the Netherlands [AFP report] have said they will not accept detainees. In January it was reported that the British government was preparing to take in Guantanamo detainees [JURIST report] after officials said in December that they might be wililng to consider detainees on a case by case basis.

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Supreme Court hears arguments in deportation, double jeopardy cases
Devin Montgomery on April 27, 2009 4:08 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Monday in two cases. In Nijhawan v. Holder [oral arguments transcript, PDF; JURIST report], the Court will consider whether convictions for mail, bank, and wire fraud qualify as an aggravated felony under the Immigration and Nationality Act (INA) [text], where the amount of loss caused was not determined by a jury. The US Court of Appeals for the Third Circuit ruled [opinion, PDF] that the convictions do qualify as an aggravated felony, but counsel for the petitioner argued that even though the petitioner stipulated that the amount of loss caused was higher than the statutory minimum, that finding would have to be arrived at by a jury to qualify their client for deportation.

In Bobby v. Bies [oral arguments transcript, PDF; JURIST report], the Court will consider whether the Double Jeopardy [LII backgrounder] clause is violated by the holding of a state post-conviction hearing to determine the mental capacity of a capital defendant whose death sentence was affirmed before the 2002 Supreme Court ruling in Atkins v. Virginia [opinion, PDF], which barred the execution of mentally retarded defendants. The US Court of Appeals for the Sixth Circuit held [opinion, PDF] that there was a Double Jeopardy violation. Counsel for the petitioner, who is seeking to hold the hearing, argued that the clause was not triggered in the case, because the respondent was not acquitted of the crime by the ruling, and the hearing was not on par with another trial for the same crime:

First, there has been no acquittal in this case. Second, there is no successive jeopardy; and, third, even if collateral estoppel analysis applies... the Atkins issue has not actually and necessarily been decided. Each of these factors shows that the Ohio court's decision to go forward with the Atkins hearing was reasonable, and this Court therefore should... give the Ohio courts their first chance to adjudicate Mr. Bies's Atkins claim.
Counsel for the respondent argued that the trial court in the case had appropriately considered whether the respondent was mentally retarded, and that an additional inquiry into the issue would therefor be improper.

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UK home secretary rules out central database for communications records
Safiya Boucaud on April 27, 2009 11:56 AM ET

[JURIST] UK Home Secretary Jacqui Smith [official profile] announced Monday that the British government will not be establishing a central government database [press release] to keep records of phone calls, emails, and Internet activity, instead leaving that job to private communications providers. The British government abandoned the central database approach due to potential privacy implications and instead has proposed that service providers store records of internet activity and phone calls. Smith published a consultation [text, PDF] Monday seeking public input on the best way to maintain communications data in order to promote public safety. Smith said [statement]:

Any reduction in communications data capabilities will seriously impair the effectiveness of our police and other services to protect the public. Criminals, terrorists and paedophiles are often among early adopters of new technology. We must ensure that our law enforcement agencies can continue to obtain communications data in the face of great technological change.
Smith said that she hopes to "continue to strike the balance between respect for individual privacy and protection of the public."

Monday's announcement follows last November's delayed draft [JURIST report] of the Communications Database Bill [draft materials], which is part the British government's strategy for fighting terrorism and other crimes. The proposed bill has garnered many critics. In October, the office of Information Commissioner Lord Carlile took the extraordinary step of calling the bill a "step too far for the British way of life." Also in October, outgoing UK Director of Public Prosecutions Ken Macdonald warned against the expansion of government power in gathering intelligence [JURIST report] and prosecuting suspected terrorists, saying that present decisions about how the government should use technology to protect security are likely to be permanent. Recent high-profile news stories about losses of data by British government official and agencies [Independent report] have heightened concerns over the legislation.

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Afghanistan president says controversial law restricting women's rights under review
Ingrid Burke on April 27, 2009 10:56 AM ET

[JURIST] Afghan President Hamid Karzai [BBC profile; JURIST news archive] told reporters Monday that the controversial Shi'ite personal status law [Reuters backgrounder; JURIST news archive], which limits women's rights, is being amended by the country's Justice Ministry. Monday's statement [Reuters report] at a press conference with UK Prime Minister Gordon Brown came one day after Karzai told female members of parliament and human rights advocates that he would amend the law in an effort to align its more controversial provisions with international standards of human rights. During the meeting, Karzai reportedly said that when he signed the law [JURIST report] last month, he did so without realizing the effects [Reuters report] it would have on the lives of the country's Shi'ite women because the law was 239 pages in length and was written in an esoteric theological language. The law, which has not yet been published, has received a great deal of local and international criticism for allegedly condoning marital rape, setting the minimum marital age for females at nine years old, denying rights of spousal inheritance to widows, and otherwise limiting the freedom of Shi'ite women in Afghanistan.

Key Shi’ite cleric Mohammad Asif Mohsseni defended the law [JURIST report] earlier this month, chastising Western critics for interfering with Afghan democracy. Less than a week later, approximately 300 Afghan women protested [JURIST report] the law in front of the mosque run by Mohsenni in response to his endorsement. Fierce international criticism of the law's more controversial provisions prompted Karzai's decision to suspend the law and to submit it to the Ministry of Justice [JURIST reports] for review earlier this month. His decision to sign the law was one of several actions that Karzai has been criticized for since his appointment as Afghanistan's interim president in 2002. In early March, the UN reported that the human rights situation in Afghanistan is worsening [JURIST report], one week after a similar US report rebuked Afghanistan for, among other problems, continued use of child labor [JURIST report]. In November, the UN urged Afghanistan to discontinue use of the death penalty [JURIST report], which Karzai had reinstated following a four-year moratorium [JURIST report]. In April 2008, the Taliban attempted to assassinate Karzai [Guardian report] during a military parade, the third attempt on his life since 2001.

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Supreme Court takes energy, bankruptcy, immigration cases
Matt Glenn on April 27, 2009 10:29 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in three cases. In NRG Marketing, LLC v. Maine Public Utilities Commission [docket; cert. petition, PDF] the Court will consider whether the Sierra-Mobile doctrine applies when an entity not party to an interstate electricity contract contests the contract as not being "just and reasonable" as required by Section 206 of the Federal Power Act [text]. Under the Sierra-Mobile doctrine, the Federal Energy Regulatory Commission (FERC) [official website] must presume a wholesale rate contract is "just and reasonable," and that presumption can be overcome only by showing that the contract "seriously harms the public interest." The US Court of Appeals for the DC Circuit held [opinion, PDF] that the Sierra-Mobile doctrine does not apply when challenged by an entity not party to the contract.

In Schwab v. Reilly [docket; cert. petition, PDF] the Court agreed to hear two questions:

1. When a debtor claims an exemption using a specific dollar amount that is equal to the value placed on the asset by the debtor, is the exemption limited to the specific amount claimed, or do the numbers being equal operate to "fully exempt" the asset, regardless of its true value?

2. When a debtor claims an exemption using a specific dollar amount that is equal to the value placed on the asset by the debtor, must a trustee who wishes to sell the asset object to the exemptions within the thirty day period of Rule 4003, even though the amount claimed as exempt and the type of property are within the exemption statute?
Federal Rule of Bankruptcy Procedure 4003 [text] allows debtors to exempt certain assets from bankruptcy proceedings and provides a 30-day period for trustees to challenge those exemptions. The Court will consider whether a trustee may challenge the valuation of a properly exempted asset after the 30-day period. The US Court of Appeals for the Third Circuit held [opinion, PDF] that any challenge must come within the 30-day period.

In Kucana v. Holder [docket; cert. petition, PDF] the Court will consider the extent to which 8 USC § 1252(a)(2)(B)(ii) [text] strips courts of jurisdiction and "whether the statute removes jurisdiction from federal courts to review rulings on motions to reopon by the Board of Immigration Appeals." The US Court of Appeals for the Seventh Circuit held [opinion, PDF] that it lacked jurisdiction to review Kucana's claim.

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Bangladesh prosecutors to drop two corruption charges against PM
Benjamin Hackman on April 27, 2009 8:34 AM ET

[JURIST] The Bangladeshi state prosecutor said Monday that he is seeking to drop two of several corruption charges pending against Prime Minister Sheikh Hasina [BBC profile] because they were politically motivated. State prosecutor Abdullah Abu said the two charges, as well as charges against other officials, were filed to harass leaders [AFP report]. Abu also said petitions to drop 50 cases [Daily Star report] against other politicians were filed and that several hundred other charges would not be pursued if shown to be politically motivated.

Hasina, a member of the Bangladesh Awami League [party website], is still facing several other corruption charges. In July 2007, she was arrested [JURIST report] on suspicion of extorting more than $1 million from two businesspersons while she was prime minister from 1996-2001. She denied [JURIST report] the accusations. After an investigation by Bangladesh's Anti-Corruption Commission (ACC) [governing statute, PDF], Hasina was formally charged with extortion [JURIST report] in January 2008. Five months later, she was indicted [JURIST report] after the ACC accused her of receiving about $440,000 in illegal kickbacks from a power-plant deal during her prior tenure as prime minister. In September, Berlin-based corruption watchdog Transparency International [official website] rated Bangladesh [news release, PDF] the tenth most politically and administratively corrupt country out of 180 countries studied in 2008.

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Iraq PM claims US military raid violated status of forces agreement
Eszter Bardi on April 27, 2009 8:25 AM ET

[JURIST] Iraq Prime Minister Nouri al-Maliki [BBC profile; JURIST news archive] denounced on Sunday a US military raid in Iraq as violating the bilateral Status of Forces Agreement (SOFA) [text, PDF; JURIST news archive]. The agreement states that any military offensives by the US are to be performed in accordance with Iraqi laws and prior notice of any military operations is be given to the Joint Military Operations Coordination Committee (JMOCC). Al-Maliki asserted that the Sunday morning attack, which killed two people, was in violation of the SOFA and that he would like to subject the responsible US forces to judicial proceedings [Reuters report]. Under the SOFA, US military personnel may be subject to Iraqi jurisdiction for grave violations of the terms of the agreement.

The SOFA was signed [JURIST report] in December and took effect on January 1. The agreement was negotiated between Iraq and the US in anticipation of the 2009 expiration of the UN mandate [text] that allowed the presence of US military in Iraq. In addition to setting the official deadlines for troop withdrawal, the SOFA gives Iraqi courts limited jurisdiction over American military personnel and eliminates immunity [JURIST reports] for US defense contractors working within Iraq.

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Senate judiciary chair Leahy again calls for 'truth commission' to review Bush policies
Jay Carmella on April 27, 2009 8:18 AM ET

[JURIST] Chairman of the US Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile; JURIST news archive] reiterated his calls for a non-partisan truth commission to investigate Bush administration officials responsible for authorizing certain interrogation techniques during an interview [transcript, PDF] with CBS Sunday. Leahy said [CBS report] the focus of the commission should not be vengeance, but rather to investigate the individuals in the Bush administration that authorized the tactics that he claims violated US laws. Leahy suggested that the commission should look into the involvement of members of the Office of Legal Counsel and the Department of Justice (DOJ) [official websites], and could even investigate certain members of Congress, including Speaker of the House Nancy Pelosi (D-CA) [official website; JURIST news archive], who were briefed on the subject. He said:

I know some people say let’s turn the page. Frankly, I’d like to read the page before we turn it. It is not from some idea of vengeance in doing this, but we know that there’re number of people that made the decision to violate the law, a number of people who said that we don’t have to follow our constitution, others who wrote memos basically saying the President and Vice President are above the law--the laws of the United States don’t apply to them like they do to you and me. And I want to know why they did that. What kind of pressures brought them to write things that are so off the wall and to make sure it never happens again. That’s why I want it.
Leahy also indicted that he would welcome former vice president Dick Cheney [JURIST news archive] to come before the Judiciary Committee or the commission, but that he would not subpoena him to do so.

Last week, White House Press Secretary Robert Gibbs said that the Obama administration opposes [JURIST report] the formation of an independent commission to investigate Bush administration interrogation techniques. Earlier that week, the US Senate Select Committee on Intelligence [official website] released a report [JURIST report] by the DOJ indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice in 2002 approved the use of waterboarding and other extreme interrogation techniques at Guantanamo Bay [JURIST news archives]. Leahy initially called for the creation of a truth commission in February and then again [JURIST reports] during a Judiciary Committee hearing in March. Leahy said the commission would not be focused on preparing criminal indictments, but it should have subpoena powers. The ranking Republican on the committee Arlen Specter (R-PA) [official profile; JURIST news archive] opposed the formation [transcript] of a commission, saying the DOJ, under a new administration, was equipped to handle any such investigation.

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Qualcomm and Broadcom settle patent infringement suit
Tere Miller-Sporrer on April 27, 2009 8:05 AM ET

[JURIST] Wireless communications company Qualcomm Inc. [corporate website] reached a settlement [press release] in a lengthy legal battle with rival firm Broadcom [corporate website], under which it will pay Broadcom $891 million. Under the terms of the settlement, the companies agree not to assert patents against each other for their respective integrated circuit products and certain other products and services, which include integrated circuit products incorporated into cellular and non-cellular products. The agreement dismisses with prejudice all litigation between the two companies and provides that:

Broadcom customers do not receive rights to any of Qualcomm's patents used in integrated circuit products incorporated into cellular products and equipment and Qualcomm will pay Broadcom $891 million in cash over a period of four years, of which $200 million will be paid in the quarter ending June 30, 2009. The agreement does not provide for any other scheduled payments between the parties.
Last month, a federal court dismissed [order, PDF; JURIST report] Broadcom's antitrust complaint against Qualcomm. Broadcom had filed the 2008 complaint following the Supreme Court's decision in Quanta v. LG Electronics [opinion, PDF; JURIST report], an antitrust case in which the Court held that the sale of a patent triggers exhaustion. That decision was only the latest in a long series of legal battles between the two corporations. In December, the US Court of Appeals for the Federal Circuit [official website] affirmed in part a holding against Qualcomm [opinion, PDF; JURIST report] on the basis of patent holdup. In September, the federal appeals court affirmed an injunction against Qualcomm [Reuters report] on the basis of their alleged infringement of two Broadcom patents.

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Taiwan, China sign judicial cooperation pact
Lucas Tanglen on April 26, 2009 11:22 AM ET

[JURIST] Taiwan and China [JURIST news archives] on Sunday signed a landmark judicial cooperation agreement [DOC text, in Mandarin], under which each side will help to repatriate suspected criminals. The transfers of almost 40,000 criminals and suspects between the nations have been facilitated by non-governmental organizations since 1990, but the new agreement allows for direct judicial cooperation [Xinhua report]. Taiwan hopes the agreement will help combat the trend of economic criminals successfully fleeing to China [Taipei Times report]. The agreement also calls for cooperation in serving court documents, enforcing civil judgments and sharing evidence — especially for crimes such as kidnapping and drug offenses.

The strained political relationship between Taiwan and China that now dates back 60 years to the 1949 Communist takeover of the mainland has had a variety of legal repercussions over time. In 2007, calls by then-Taiwan president Chen Shui-Bian for a new independentist constitution [JURIST report] for the country drew severe criticism from the mainland leadership, with Chinese Foreign Minister Li Zhaoxing saying in response that "whoever wants to split away will become a criminal in history." In 2005, China's National People's Congress approved an anti-secession law [JURIST news archive] authorizing the use of "non-peaceful means" against Taiwan as a last resort in reunification.






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US pledges to review files of Kuwaiti Guantanamo detainees: Kuwait minister
Lucas Tanglen on April 26, 2009 10:04 AM ET

[JURIST] Kuwait's Ministry of Foreign Affairs [official website, in Arabic] said in a statement [text, in Arabic] Sunday that US Secretary of State Hillary Clinton [official website] has promised that the US will review the files of four Kuwaiti detainees at Guantanamo Bay [JURIST news archive]. Kuwaiti Minister of Foreign Affairs Sheikh Mohammad al-Sabah [official profile] met with Clinton on Saturday during her first visit to Kuwait as Secretary of State [JURIST news archive]. Sheikh Mohammad told Clinton that recently released information regarding interrogation techniques [JURIST report] increased America's obligation to either prosecute or release the detainees.

In October 2008, the US Department of Defense [official website] announced it had filed new war crimes charges [JURIST report] against two Kuwaiti men held at Guantanamo. In May 2008, the US military said one bomber in a series of suicide attacks in Mosul, Iraq, was a Kuwaiti who had been released [JURIST report] after three years in Guantanamo. In May 2007, a Kuwaiti appeals court upheld the acquittal of two former Guantanamo detainees, agreeing with a lower court that there was insufficient evidence to convict [JURIST reports].






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Burundi urged to repeal law criminalizing homosexuality
Devin Montgomery on April 26, 2009 9:56 AM ET

[JURIST] Human Rights Watch, Amnesty International [advocacy websites] and 60 other groups on Friday urged the Burundian government [joint statement text; press release] to repeal a new law criminalizing homosexuality [JURIST news archive] in the country. The law was promulgated by President Pierre Nkurunziza [BBC profile] on April 22, and subjects those found guilty of engaging in a homosexual relationship to a fine or up to two years in prison, or both. The groups said that the law violates the Burundi Constitution, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights, and the Universal Declaration of Human Rights [texts] and would harm anti-AIDS efforts in the country:

We consider the law to violate the rights to privacy and freedom from discrimination protected by Burundi's Constitution and enshrined in its international treaty commitments, notably the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples' Rights, and the Universal Declaration of Human Rights. We deeply regret that the Burundian government has made a decision that writes human rights violations into law.

We regret that the law will hamper Burundi's attempts to fight AIDS, by further marginalizing an at-risk population.

We respectfully remind the Government of Burundi that according to the United Nations Working Group on Arbitrary Detention, arrests on the basis of sexual orientation are, by definition, human rights violations. We will carefully monitor any arrests made on the basis of this law.
The law was passed [JURIST report] by the country's National Assembly in November despite being rejected by the Burundi Senate the previous February.

Homosexuality is legally controversial around the world. In December, 66 members of the UN General Assembly [official website] signed a statement [press release; JURIST report] calling for it to be decriminalized where it is illegal, but nearly 60 nations signed an opposing statement. In March the administration of US President Barack Obama has said that it would also sign [DOS release; JURIST report] the statement calling for its decriminalization, reversing a Bush administration position.





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US lobbyist groups protest restrictions on administration contact
Devin Montgomery on April 26, 2009 8:50 AM ET

[JURIST] Leaders of the American League of Lobbyists, Citizens for Responsibility and Ethics in Washington, and American Civil Liberties Union [advocacy websites] on Friday asked the administration of US President Barack Obama [official website; JURIST news archive] to eliminate or change restrictions it has put on contact that lobbyists can have with administration officials concerning American Recovery and Reinvestment Act of 2009 [text, PDF; official website] projects. The restrictions were created by a March 20 memo [text] from Obama, in which he ordered that officials could only consider written input on the projects from lobbyists, and that the communications must be posted on a government website. In a meeting with administration ethics advisor Norm Eisen, the groups asked that they be allowed to have in-person meetings with officials about the projects, and that information on administration meetings with groups other than registered lobbyists also be published.

In a joint letter [text, PDF] written shortly after the rules were issued, the groups argued that the ban was an ineffective way of reducing the influence of special interests, and arbitrarily limited the free speech rights of lobbyists:

[B]anning lobbyists from speaking with executive branch officials will not, in and of itself, preclude petitioning the government. Rather, such a ban simply will ensure that such contacts occur between government officials and non-lobbyists, who are not governed by any regulations or penalties for misconduct. In fact, banning lobbyists – often people with experience and subject matter expertise navigating the intricacies of federal regulations and agency bureaucracy – may actually inhibit the speedy and responsible expenditure of funds on worthy projects and applicants.

In this sense, the directive is both over-inclusive and under-inclusive. It limits the free speech rights of certain registered lobbyists with absolutely no pecuniary or other improper interest in Recovery Act projects, applications or applicants. It fails to restrain non-registered lobbyists who have substantial pecuniary interests in the Recovery Act. The purposes of the directive can be achieved in a far more effective fashion, while at the same time preserving the speech rights of the maximum number of Americans.
The administration has said it will review the policy [WSJ report] in late May. Earlier this month, JURIST guest columnist William Luneburg [faculty profile] criticized constitutional arguments [JURIST op-ed] made by the lobbyist groups, arguing that the restrictions were needed to limit the disproportionate power of such groups.





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US to take in up to 7 Uighur detainees: report
Andrew Gilmore on April 25, 2009 8:10 PM ET

[JURIST] The US is planning on accepting into the country [Los Angeles Times report] up to seven Chinese Uighur [JURIST news archive] Muslims currently being held at the Guantanamo Bay [JURIST report] detention center, according to the Los Angeles Times Saturday. Last month, Attorney General Eric Holder told reporters that the US would consider accepting the 17 Uighur detainees [JURIST report] who have been cleared for release. The reported decision to accept the Uighurs, who would likely be settled in the country in small groups, drew strong criticism from politicians, including Senator Mitch McConnell (R-KY) [official website], who released a statement [press release] condemning the move. The Department of Justice (DOJ) [official website] is still exploring where to transfer cleared detainees, and has declined to repatriate the Uighurs despite Chinese demands [JURIST report] because they have been linked to a militant separatist group and could face torture upon their return.

Earlier this month, the 17 Uighur detainees filed a petition for certiorari [JURIST report] with the US Supreme Court, asking the Court to grant their release. In February the US Court of Appeals for the DC Circuit [official website] overruled [opinion, PDF; JURIST report] an October district court order [opinion and order, PDF; JURIST report] supporting the release of the Uighurs into the United states. The circuit court said that such a decision was reserved to either the executive or legislative branch. The US government has determined that the Uighurs are not unlawful enemy combatants [10 USC § 948a text; JURIST news archive], but have been linked with the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002.






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South Africa ANC election majority not enough to change constitution
Andrew Gilmore on April 25, 2009 6:39 PM ET

[JURIST] The African National Congress (ANC) [party website] was formally declared the winner of South African parliamentary elections Saturday, but its win fell short of the two-thirds majority [BBC report] of seats needed to change or amend the country's constitution and pass legislation on its own. The election clears the way for party leader Jacob Zuma [BBC profile; JURIST news archive] to be named president upon the reconvening of Parliament of the Republic of South Africa [official website]. A number of opposition parties, including the Congress of the People (COPE) [party website], formed by supporters of Zuma's political rival, former ANC leader and South African president Thabo Mbeki [ANC profile] criticized the ANC during the vote, arguing that a landslide ANC election win would result in too much power - including the power to change the constitution unopposed - being concentrated in the hands of one party. Parliament is expected to reconvene next month [AP report].

Earlier this month, the National Prosecuting Authority of South Africa (NPA) [official website] decided to drop corruption charges [JURIST report] against Zuma after a long legal battle. In January, the Supreme Court of Appeal of South Africa [official website] reinstated the charges, which had been invalidated [JURIST reports] in September. Zuma was first charged with corruption in 2005, but those charges were later dismissed [JURIST report] because prosecutors failed to follow proper procedures.






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German parliament approves bill limiting genetic testing
Steve Czajkowski on April 25, 2009 10:55 AM ET

[JURIST] The Bundestag [official website, in German], the lower house of the German parliament, approved a bill [text, PDF; bill materials, both in German] Friday restricting the use of genetic testing on humans. Specific provisions of the legislation, also know as GenDG [bill backgrounder, in German], include requiring a person to consent and to consult a doctor before testing takes place, requiring both the mother and father to consent to a paternity test before it is performed, and preventing employers and insurance companies from requiring genetic testing except in specific circumstances. Germany's Health Minister Ulla Schmidt [official website, in German] praised the passage of the legislation, saying [statement text, in German] the bill achieves necessary protection for individuals by establishing mandatory rules and high hurdles for genetic studies. According to Schmidt's statement, the legislation does not require approval by the Bundesrat [official website, in German], Germany's upper house.

A genetic testing bill had been debated in Germany for over 10 years [DW report] because of the controversy over ethical issues. The legislation is similar to a US law approved [JURIST report] in 2008 by then- president George W. Bush, which was aimed at preventing employers and health insurers from discriminating against people who have a genetic predisposition to disease. Under the law, employers are barred from basing hiring and firing decisions on genetic risk or predisposition, while health insurers would not be permitted to deny coverage based on genetic information.






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US must prosecute CIA interrogation memo authors: UN torture investigator
Steve Czajkowski on April 25, 2009 9:48 AM ET

[JURIST] UN special rapporteur on torture Manfred Nowak [official profile, DOC] said Friday that the US must prosecute Justice Department (DOJ) [official website] lawyers who drafted four recently released top secret memos [JURIST report], which outlined controversial CIA interrogation techniques and their legal rationale. During a news conference in Geneva, Nowak said the US is obligated [AP report] by the UN Convention Against Torture [text], which requires prosecution in all cases in which there is evidence of torture [JURIST news archive], because those who wrote the memos defined torture in a very limited way in order to justify its use. Nowak emphasized that this demonstrates complicity or participation in torture [DPA report] as stated in the convention. If the US does not prosecute the memo drafters, Nowak insisted that other countries party to the convention have a duty to do so under the concept of universal jurisdiction [AI backgrounder]. Additionally, Nowak said that while he trusted US President Barack Obama to conduct a full investigation, any investigation had to be independent and thorough and prosecutors would have to demonstrate that the memos were written with intent to encourage the use of torture.

Last week, Nowak criticized [JURIST report] Obama's decision [JURIST report] not to prosecute Bush-era CIA agents who allegedly used torture. Nowak said there was nonetheless still a possibility of trying agents in American courts, because Obama did not grant them amnesty. Obama's decision not to prosecute came on the same day as the release of the memos in response to a Freedom of Information Act (FOIA) [text] lawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] during the Bush administration. Obama said that due to widespread speculation about the memos, it was in the best interest of the US to publicly acknowledge their existence.






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DC Circuit again rejects suit by former UK Guantanamo detainees
Andrew Gilmore on April 24, 2009 3:50 PM ET

[JURIST] A three-judge panel of the US Court of Appeals for the DC Circuit [official website] rejected [opinion, PDF] Friday a lawsuit by four UK citizens and former Guantanamo Bay [JURIST news archive] detainees against former US defense secretary Donald Rumsfeld [JURIST news archive] and other military officials. The court's opinion in affirmed in part district court decision dismissing illegal detention and mistreatment charges under the Alien Tort Statute [text], the Geneva Conventions [ICRC materials], and the Fifth and Eighth Amendments [text] of the US Constitution against Rumsfeld and other military officials, and reversed the lower court's decision to reject a motion for dismissal of two additional charges against the defendants. The ruling comes after the US Supreme Court [official website; JURIST news archive] vacated and remanded to the district court [JURIST report] the DC Circuit's 2008 decision in the same case, which also dismissed the lawsuit against Rumsfeld and the other defendants. In vacating and remanding the first case, the Supreme Court ordered the district court to reexamine the lawsuit in light of the Court's July decision in Boumediene v. Bush [opinion, PDF; JURIST report]. While the district court found that Boumediene applied to two of the charges, the DC Circuit rejected the lawsuit on the grounds that the actions taken by the defendants were not illegal at the time they were committed. Judge Janice Rogers Brown wrote:

There is another reason why we should not decide whether Boumediene portends application of the Due Process Clause and the Cruel and Unusual Punishment Clause to Guantanamo detainees – and it is on this ground we will rest our decision on remand. The doctrine of qualified immunity shields government officials from civil liability to the extent their alleged misconduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." ...

Our vacated opinion explained why qualified immunity insulates the defendants from plaintiffs’ Bivens claims. ... Boumediene does not affect what we wrote. No reasonable government official would have been on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights. At the time of their detention, neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights — under the Fifth Amendment, the Eighth Amendment, or otherwise. The Court in Boumediene recognized just that: “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” [citation omitted]
UK citizens Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith were released from Guantanamo in March 2004. In May 2004, Rasul and Iqbal said in an open letter to US President George W. Bush that they had suffered abuse at Guantanamo [JURIST report] similar to that perpetrated at Abu Ghraib [JURIST news archive] prison in Iraq. The Center for Constitutional Rights [advocacy website] filed a lawsuit [JURIST report] on their behalf in October 2004 against Rumsfeld, former Chairman of the Joint Chiefs of Staff General Richard Meyers, and others alleging [complaint] "deliberate and foreseeable action taken ... to flout or evade the United States Constitution, federal statutory law, United States treaty obligations and long established norms of customary international law."





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Vote for JURIST in the 2009 Webby Awards!
Jaclyn Belczyk on April 24, 2009 2:20 PM ET

[JURIST] JURIST has been nominated in New York for a prestigious Webby Award as the best Law website of 2009. By virtue of being a nominee, JURIST is eligible for the Webby People's Voice award in addition to the judge's award. We hope you'll support JURIST and our staff of dedicated law students by voting for us! Polls close Thursday, April 30.

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5. Vote for JURIST!
Once you've voted yourself, please spread the word to your colleagues and friends - anyone you think would support the online public service JURIST's law students perform every day by providing serious, thoroughly-documented legal news and expert commentary to tens of thousands of online readers worldwide, all for free and without advertising.

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Fiji AG says ousted judges to be replaced next week
Andrew Gilmore on April 24, 2009 2:07 PM ET

[JURIST] Fijian Attorney General Aiyaz Sayed Khaiyum said Friday that the government would name new judges [RNZ audio] to replace those discharged following the suspension [JURIST report] of the country's constitution by President Ratu Josefa Iloilo [official profile] two weeks ago. Speaking to Radio New Zealand (RNZ), Khaiyum said that the Fiji government anticipates having judges appointed by next week [AP report], although the country's high court would likely remain closed for close to one month. Following the suspension of the constitution, Iloilo dismissed the judges and imposed restrictions on domestic and international media outlets. Iloilo also reappointed the head of the Fijian military Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile] as prime minister [JURIST report], a move which was condemned [ABC report] by the UN and members of the Australian government, including Australian Prime Minister Kevin Rudd [official profile].

Last week, UN High Commissioner for Human Rights Navi Pillay urged Iloilo to reinstate the deposed judges [JURIST report]. Earlier that week, members of Fiji's Law Society [organization website] called for deposed judges to remain in office [JURIST report] and resist the current military regime's attempts to oust them. Turmoil has built since the Court of Appeal of Fiji declared [JURIST report] that the appointment of the military government following a 2006 coup d'etat [JURIST report] that ousted Prime Minister Laisenia Qarase [BBC profile] was unconstitutional. Concerns about the constitutional suspension have also been expressed [statement text] by UN Secretary-General Ban Ki-moon and US State Department [official website] spokesperson Richard Aker, who said that it was a step backwards [press release] for the country, and called on Fiji to continue to recognize rights outlined in the suspended constitution.






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North Korea to formally indict detained US journalists
Adrienne Lester on April 24, 2009 2:06 PM ET

[JURIST] North Korean state media Korean Central News Agency (KCNA) [media website] reported Friday that two US journalists arrested in March will stand trial. While the charges remain unclear, it is possible the journalists will face charges of espionage [AP report]. According to the South Korea Ministry of Unification [official website], espionage charges in North Korea carry at least a five year prison sentence in labor camps. There are concerns that North Korea will use the journalist as leverage [BBC report; JURIST comment] in international negotiations as North Korean regime has been the subject of considerable international pressure over its refusal to fully disclose its past nuclear activity. US State Department spokesperson Robert Wood said [press briefing] Friday that, "we continue to call on the North Koreans to release the two Americans so they can be returned to their families. We’ll continue to work this issue through diplomatic channels."

The two journalists were detained in March 2008 [JURIST report] while allegedly attempting to enter the country illegally from China. Laura Ling [professional website] and Euna Lee were reporting on North Korean refugees in China for Current TV [media website] when they allegedly crossed the border [Yonhap report]. An investigation by North Korean officials allegedly concluded that the journalists had entered the country illegally [AFP report] and that there was enough evidence to charge [JURIST report] them. US Secretary of State Hillary Clinton [official profile; JURIST news archive] has reportedly been involved in talks [Chosun Ilbo report] regarding the reporters.






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Thailand PM promises constitutional reforms after lifting state of emergency
Amelia Mathias on April 24, 2009 2:00 PM ET

[JURIST] Thai Prime Minister Abhisit Vejjajiva [BBC profile] lifted the emergency rule decree [text, PDF] Friday and promised constitutional reforms to bring stability back to Thailand after months of protests and violence. The state of emergency [JURIST report], which went into force on April 11, was an attempt to control the actions of Red Shirts, supporters of ex-prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], and members of the United Front for Democracy against Dictatorship party. Abhisit has given permission to begin an inquiry into the violent clashes, in which two died and more than 100 were injured. The search also continues for Shinawatra himself, who was last sighted in Liberia [Reuters report] meeting with Vice President Joseph Boakai on Friday to discuss business opportunities. Shinawatra, whose Thai passport has been revoked, is traveling on a Nicaraguan passport and avoiding nations where he may be extradited to Thailand to face two years imprisonment on a conflict of interest charge. A warrant for his arrest [JURIST report] was issued by a Thai court last week. In Bangkok, the Red Shirts have planned a protest [Bangkok Post report] for Saturday.

Abhisit took over as prime minister in December, after the Constitutional Court of Thailand [official website, in Thai] ordered the dissolution [JURIST report] of the ruling People's Power Party (PPP) [party website, in Thai], and banned then-prime minister Somchai Wongsawat [Nation profile] from politics for five years as the result of an election fraud investigation. Shinawatra, ousted as prime minister [JURIST report] in a 2006 military coup, was convicted on corruption charges [JURIST reports] by the Supreme Court of Thailand in October.






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White House opposes independent commission to investigate Bush policies
Tere Miller-Sporrer on April 24, 2009 12:45 PM ET

[JURIST] White House Press Secretary Robert Gibbs said Thursday that the Obama administration opposes the formation of an independent commission to investigate Bush administration interrogation techniques. During a press conference aboard Air Force One on Wednesday, Gibbs said that the president had not left the door open to a commission [press briefing] "because what he's saying - he was asked, what about these commissions, and he said if Congress were to decide to set one up, it has to be done outside of the realm of politics." On Thursday, Gibbs clarified that statement [press briefing] by saying that after internal White House discussion, "the President determined that the concept [of an independent commission] didn't seem altogether that workable in this case" and that there was no evidence that the Department of Justice (DOJ) [official website] would not be able to handle the investigation.

In February, chairman of the US Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile; JURIST news archive] called for the creation of a truth commission [JURIST report] to investigate the national security policies of the Bush administration. The committee held a hearing [JURIST report] on the formation of a truth commission in March. Senate Majority Leader Harry Reid (D-NV) [official website] has said that the Senate Intelligence Committee should first be allowed to complete an ongoing investigation.






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Spain court assigns new judge to probe US officials who backed Guantanamo
Tere Miller-Sporrer on April 24, 2009 12:08 PM ET

[JURIST] A Spanish court assigned a new judge Thursday to decide whether to prosecute members of the Bush administration behind the establishment of the Guantanamo Bay [JURIST news archive] detention center, a court spokesperson told CNN [CNN report]. Eloy Velasco will replace Baltasar Garzon [BBC profile; JURST news archive] in determining whether to seek legal action against former US attorney general Alberto Gonzales and six other Bush administration lawyers who are accused [complaint, PDF in Spanish; JURIST report] of sanctioning torture. Velasco was given the case after Garzon recommended that the provisional case be assigned to an investigating magistrate.

Last week, Spanish prosecutors announced that they would not recommend trying any of the named defendants [JURIST report] because they had not committed acts of torture. Garzon, famed for indicting Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives], is well known for his involvement in high-profile investigations of terror and human rights cases under the universal jurisdiction principle. In February, Spain announced that it is considering legislation to limit [JURIST report] the the scope of universal jurisdiction to those cases that have a substantial link to the country or its citizens.






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Serbia war crimes court convicts ex-police of killing civilians in Kosovo war
Brian Jackson on April 24, 2009 9:21 AM ET

[JURIST] Four former Serbian policemen were convicted [BETA report] Thursday of the killing of 48 Albanian civilians in Suva Reka during the war in Kosovo [State Department backgrounder] in 1999. Their trial in a Serbian war crimes court began in October 2005 with eight men accused of rounding up and shooting [indictment, MHT] the civilians, including 46 members of one family, the Berishas. Former policemen Radojko Repanovic and Sladjan Cukaric each received 20 years in prison, while Miroslav Petkovic was sentenced to 15 years. Former State Security Department official Milorad Nisavic was also sentenced to 13 years. Former Police Special Unit Commander Radoslav Mitrovic, Nenad Jovanovic, and Zoran Petkovic were acquitted, though the Serbia War Crimes Prosecutor [official website] plans to appeal the acquittals [BBC report]. Advocacy group Humanitarian Law Center [advocacy website] decried the acquittals [press release, DOC], calling them "unjust for both the victims and the accused" and saying "there were no mitigating circumstances to justify such a low sentence" for Nisavic .

The convictions for the Suva Reka killings are the latest for war crimes committed during the Kosovo war. In October, former policeman Vaso Todorovic was convicted of crimes against humanity [JURIST report] for the capture and detention of 40,000 Bosnian Muslims in 1995. Earlier that month, four Bosnian Serbs were arrested for the killing [JURIST report] of 200 civilians in Koricanske Stijene. In 2006, former parliamentary leader Momcilo Krajisnik was sentenced to 27 years in prison [JURIST report] for the forced transfer, deportation, and persecution of non-Serbs. His sentence was later reduced to 20 years [JURIST report].






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Holder denies interrogation memos release was selective
Christian Ehret on April 24, 2009 9:14 AM ET

[JURIST] US Attorney General Eric Holder [official profile] on Thursday testified [webcast] in front of a House Appropriations subcommittee [official website] that he is willing to release as much information as possible in regards to interrogation techniques used on Guantanamo Bay [JURIST news archive] detainees. Holder said that the recent release of four CIA interrogation memos [JURIST report] was not being done selectively to advance a political agenda. Former vice president Dick Cheney had urged Holder [AP report] to release other memos that would reveal the information that was gained by the approved interrogation techniques. Congressman Frank Wolf (R-VA) [official website] echoed [statement] Cheney's request by asking if the "administration is suppressing additional memos that demonstrate the effectiveness of interrogation techniques as well as document Bush administration efforts to correct problems." Holder responded to the requests by stating that he was unaware of the other memos and that other agencies may have control over them. Holder was also questioned about the possible impending charges [JURIST report] against the officials who authored the memos. He responded by stating that, while he would not permit the "criminalization of policy differences," it was his duty to enforce the law against wrongdoers.

On Wednesday, the Senate Select Committee on Intelligence [official website] released a report [JURIST report] indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice approved the use of harsh interrogation techniques in 2002. Earlier this week, President Barack Obama said that he was open the possibility of prosecuting [transcript] those who authorized harsh interrogation techniques, but that the decision would be up to Holder. Obama had previously said that he would not pursue prosecutions of CIA interrogators [statement], a pledge which drew sharp international criticism [JURIST report]. Earlier this month, House Judiciary Committee Chairman John Conyers (D-MI) [official website] released a final version of a report [JURIST report] calling on current Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senator Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."






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Guantanamo detainee lawsuit claims torture prior to authorization of techniques
Brian Jackson on April 24, 2009 8:20 AM ET

[JURIST] The lawyer for Guantanamo Bay [JURIST news archive] detainee Rafik Alhami [NYT profile] filed suit [complaint, PDF] Thursday in the US District Court for the District of New Jersey [official website] alleging that Alhami was tortured before the Bush administration approved of the techniques. The suit claims [Star-Ledger report] that Alhami was kicked, punched, stripped naked, and threatened with dogs beginning in 2001 and continuing after his transfer to Guantanamo Bay in 2003. Last week, the Senated Armed Services Committee declassified a report [JURIST report] that indicated the enhanced interrogation techniques were not authorized until 2002. Alhami is being represented in the suit by Joshua and Mark Denbeaux [profiles], who have been involved in detainee rights for several years as members of the Guantanamo Bay Teach-In [advocacy website] at Seton Hall University School of Law.

Alhami's complaint is the latest in a number of allegations of torture performed at Guantanamo Bay. Earlier this month, Mohammed El Gharani alleged in a phone interview [JURIST report] with Al-Jazeera that he had been beaten to the point of having his teeth broken. Prior to El Gharani's claim, the Red Cross released a report [JURIST report] that stated doctors at Guantanamo Bay had violated codes of medical ethics by assisting in ill-treatment of detainees at the prison facility.






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DOJ to release detainee treatment photos under court order
Bhargav Katikaneni on April 24, 2009 8:14 AM ET

[JURIST] US Department of Justice (DOJ) [official website] officials said Thursday that they would release at least 44 photographs [letter, PDF] "depicting the treatment of detainees in Iraq and Afghanistan," pursuant to a court order. In a letter sent to Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website], the DOJ said it would comply with his 2005 order [text, PDF] to release 21 photos, taken by an investigator at Abu Ghraib [JURIST news archive] prison and later provided to the Army's Criminal Investigative Division [official website] after the Department of Defense (DOD) [official website] lost a challenge to a Freedom of Information Act (FOIA) [text] request brought by the American Civil Liberties Union (ACLU) [advocacy website]. The DOD subsequently appealed to the US Court of Appeals for the Second Circuit [official website], and lost [opinion, PDF; JURIST report]. In the letter to Hellerstein, the DOJ informed him that they would not appeal their case to the Supreme Court, but instead would comply fully with the FOIA request and said:

the government is also processing for request a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case; these other images will be processed consistent with the court's previous ruling on responsive images in this case.
The DOJ said they had reached an agreement with the ACLU and that the photographs would be released by May 28, 2009. ACLU staff attorney Amrit Singh said [press release] that the disclosure of the photos "is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse."

The ACLU has recently been successful in obtaining documents through FOIA requests. Last week, the Obama administration released [JURIST report] four secret CIA memos that detailed interrogation techniques in response to an ACLU freedom of information request. Last month, in another FOIA case, Hellerstein ordered [JURIST report] the CIA to produce reports on the destruction [JURIST Archive] of 92 videotapes of detainee interrogation, or in the alternative explain why they cannot, after the ACLU alleged that their destruction violated [ACLU press release] a court order. Attorney General Eric Holder [official profile] has issued new FOIA guidelines [memorandum, PDF; JURIST report], designed to increase transparency in government. The new guidelines were issued last month, following President Barack Obama's January memorandum [text], favoring disclosure [JURIST report].





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Canada court orders PM to request repatriation of Guantanamo detainee Khadr
Christian Ehret on April 24, 2009 8:02 AM ET

[JURIST] A Canadian Federal Court ruled [judgment, PDF] Thursday that Prime Minister Stephen Harper [official website] must advocate for the repatriation of Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive]. Khadr claims that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text]. The Honourable Mr. Justice O'Reilly found that Khadr's rights under section 7 of the charter were infringed by the Canadian government by refusing to request his return. Section 7 provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." O'Reilly found that the Canadian government:

had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time.

The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable
Khadr's US military defense attorney Lieutenant Commander William Kuebler predicted [CBC report] that there would be no resistance from the US after this decision and that Khadr's return to Canada is inevitable.

Earlier this month, Kuebler was reinstated as Khadr's attorney [JURIST report] by a military judge who ruled that the chief defense counsel did not have the authority to remove him. Khadr's defense team had presented a plan to return him [JURIST report] to Canada, a proposal supported by opposition members [open letter, PDF] of the Canadian House of Commons. Khadr has allegedly admitted to throwing a hand grenade that killed a US soldier in Afghanistan and was charged [JURIST reports] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.





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Kenya prosecutors charge suspected Somali pirates
Andrew Gilmore on April 23, 2009 4:25 PM ET

[JURIST] Kenyan prosecutors brought piracy charges Thursday against 18 Somali nationals who were captured at sea by European naval forces over the past two months and handed over to the Kenyan authorities. The suspected pirates [DW report] were captured by French and German forces off the Somali coast, where they allegedly attacked several merchant ships in the area. The European Union (EU) [official website] and Kenya have reached an agreement [EU press release, PDF; JURIST report] that allows EU navies to apprehend alleged pirates and turn them over to Kenyan authorities for prosecution. The agreement contains provisions for the prosecution of piracy suspects, including nine of the Somali pirates charged Thursday, who were captured by German forces [DW report] in March, and "defines modalities" for any capture of suspected pirates in the future. Germany has maintained a presence in the Gulf of Aden as a part of the EU's Naval Forces Atalanta mission to stem pirate activity in the troubled Gulf region. Kenya has become the lead prosecutor of suspected pirates captured by third-party countries within the Gulf of Aden. Also Thursday, the president of the UN-sponsored International Tribunal for the Law of the Sea [official website] said that body is ready to adjudicate piracy cases [AFP report].

Earlier this week, a Somali suspect captured by US naval forces following an attack on the container ship Maersk Alabama [corporate backgrounder] was charged [JURIST report] with piracy-related offenses in a US federal court. Earlier this month, the Commandant of the US Coast Guard called for greater enforcement [JURIST report] of international piracy laws. In November, eight Somalis were charged [JURIST report] in a Kenyan court for piracy after being turned over to Kenyan officials by the British Royal Navy [official website]. In October, the UN Security Council unanimously approved Resolution 1838 [text, PDF; press release], condemning all acts of piracy and armed robbery off the coast of Somalia, and calling on states to "deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia." In January 2006, the US Navy [official website] captured 10 Somali men 200 miles off the coast of Somalia and turned them over to Kenyan courts in Mombasa for prosecution [press release]. In November 2006, each of the 10 men was sentenced to seven years in prison. Although maritime piracy is increasingly widespread, Somalia's coast has been ranked as the most dangerous in the world [BBC report] due to a surge in attacks on ships carrying traded goods or humanitarian aid [NPR report].






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Ex-Khmer Rouge prison chief admits training staff to use torture
Andrew Gilmore on April 23, 2009 3:40 PM ET

[JURIST] Former Khmer Rouge [BBC backgrounder] prison head Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," testified in court Thursday that he trained staff to elicit confessions from prisoners through torture. Kaing also testified [AFP report] before the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] as to the chain of command at the notorious S-21 prison camp. On Wednesday, Kaing testified that he was tricked by UN officials [AFP report] in 1999 into giving a recorded confession. Kaing is being tried in the ECCC on mass torture and murder charges stemming from the killing of prisoners at the S-21 prison he oversaw. Kaing has admitted responsibility [JURIST post] for the deaths of prisoners at S-21.

Kaing recently requested release to a 'safe house' [JURIST report] during Cambodia genocide trial, though he lost a similar appeal [JURIST report] of his pre-trial detention in 2007. His trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during its nearly four-year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. In March, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.






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Federal judge adopts Obama administration standard for holding Guantanamo detainees
Benjamin Hackman on April 23, 2009 12:51 PM ET

[JURIST] A judge in the US District Court for the District of Columbia [official website] on Wednesday adopted a new standard [opinion, PDF] for authorizing and reviewing the detention of terrorism suspects at Guantanamo Bay [JURIST news archives] proffered by the Department of Justice (DOJ) [official website] last month. The DOJ submitted a memorandum [text, PDF; JURIST report] in March asking the court to use a new standard for adjudicating habeas corpus petitions filed by Guantanamo detainees. Judge Reggie Walton issued a memorandum opinion embracing the government's standard, which is based on international laws of war [DOJ press release] defining the president's authority under the Authorization for the Use of Military Force (AUMF) [text] and allows detention only of individuals who substantially support the Taliban or al Qaeda. Walton concluded:

in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms 'substantially supported' and 'part of' are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.
While Walton's ruling applies only to detainees in his court, other federal judges are considering similar definition changes.

The new standard makes no reference to the "enemy combatant" [JURIST news archive] classification, on which the previous standard was based, and does not rely on the president's commander-in-chief powers that exist outside the scope of Congressional authorization. Rights advocates had lobbied aggressively [JURIST comment] for the terminology change, which was effectuated as part of the Obama administration's general review of US detention policies, put in motion by a series of executive orders [JURIST report] issued in late January.





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UK court gives government one week to seek release of US 'torture' intelligence
Andrew Morgan on April 23, 2009 12:06 PM ET

[JURIST] A London High Court [official website] judge said Wednesday that the court will issue an order for the release of classified US intelligence relating to the detention of Binyam Mohamed [Reprieve profile; JURIST news archive] if the UK government does not request the information within seven days. Lord Justice John Thomas said [McClatchy report] that UK Foreign Secretary David Miliband [official profile] should have requested that the US release classified information regarding Mohamed's treatment in Guantanamo Bay [JURIST news archive] and Morocco after US President Barack Obama [official profile] took office, noting that Obama's recent release [JURIST report] of CIA interrogation memos made it "self-evident" that Obama's torture and detention policy differs from that of the Bush administration. Lawyers for Mohamed applauded [press release] the court's position, calling for the British and US governments to unambiguously explain whether any security threats exist by declassifying the information.

Mohamed asked the High Court to reconsider the publication of a number of paragraphs from a summary describing the conditions and circumstances of his imprisonment that were redacted from the High Court's August 2008 ruling [JURIST report] that the UK Foreign Office must turn over evidence essential to Mohamed's defense. Mohamed's lawyers have claimed that the redacted information has also been withheld from Obama [JURIST report]. The court found in February that US authorities threatened to alter or suspend intelligence sharing operations if the information were released, a claim that Miliband immediately denied [JURIST reports]. The court agreed to reopen the case after Mohamed's lawyers challenged the order that the torture evidence remain classified. In March, UK government's independent reviewer of terror laws called for a judicial inquiry into British complicity in US rendition and torture, and UK Attorney General Janet Scotland announced a police investigation [JURIST reports] into claims that an agent of the country's MI5 [official website] intelligence service took part in the allegedly abusive interrogation of Mohamed. Mohamed asserts that after he was arrested in Pakistan and turned over to US officials, he was then transferred to Moroccan agents who tortured him. He was later transferred to Guantanamo Bay in 2004, and was returned to the UK [JURIST report] in February following seven years of detention.






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Ashcroft, Rice approved harsh interrogation methods: Senate committee report
Devin Montgomery on April 23, 2009 11:56 AM ET

[JURIST] The US Senate Select Committee on Intelligence [official website] on Wednesday released a report [text] by the Department of Justice (DOJ) [official website] indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice in 2002 approved the use of waterboarding and other extreme interrogation techniques used by CIA agents against Guantanamo Bay [JURIST news archives] detainees. According to the report, Rice approved of the methods as a matter of policy while she was serving as national security adviser, and Ashcroft later approved of the legality of the techniques:

On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC...

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.
In a written opinion on the techniques, the Office of Legal Counsel (OLC) [official website] wrote that only federal law could prohibit their use and that they did not violate the country's Anti-Torture Statute [18 USC § 2340 text]. Several of the memoranda mentioned in the report were declassified earlier this month [JURIST report], but the report also indicated that there are additional memos that remain secret.

The report supports many of the conclusions of a Novemeber Senate Armed Services Committee (SASC) [official website] report [text, PDF; JURIST report] detailing the extent of top Bush administration officials' involvement in implementing the techniques, which was declassified [JURIST report] on Tuesday. Also on Tuesday, President Barack Obama said that he would not rule out the possibility of prosecuting [transcript; JURIST report] lawyers responsible for authoring the memoranda regarding the techniques. Obama had previously said that he would not pursue prosecutions of CIA interrogators [statement], a pledge which drew sharp international criticism [JURIST report]. Earlier this month, House Judiciary Committee Chairman John Conyers (D-MI) released a final version of a report [JURIST report] calling on current Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senator Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."





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California AG calls amendment banning affirmative action unconstitutional
Steve Czajkowski on April 23, 2009 11:24 AM ET

[JURIST] California Attorney General Jerry Brown [official website] said [opinion letter, PDF] Wednesday that portions of Proposition 209 [text], an amendment to the California Constitution [text] banning the use of affirmative action for state hiring, contracting, or university admission, may violate the US Constitution. Brown made the statement in a letter to the Supreme Court of California [official website] regarding the case of Coral Construction v. City and County of San Francisco [case materials]. The case concerns a plan by the city of San Francisco designed to increase the participation of minority owned businesses in state contracting deals. The plan had been struck down [JURIST report] by the San Francisco Superior Court [official website] in 2004 as being in violation of Proposition 209. In his letter, Brown said portions of the amendment may be unconsitutional under the Equal Protection Clause of the Fourteenth Amendment [LII backgrounders]:

...to the extent that [article I,] section 31 [(Proposition 209)] is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution... To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.

Although section 31 impacts legislation that may be in the interest of people of color and women, and alters the established political process with respect to such legislation ...the Supreme Court would not find section 31 to be invalid... to the extent it merely adopts the proscriptions of the federal Equal Protection Clause. However, to the extent that section 31 bars race- or gender- conscious programs that would be permissible under the Fourteenth Amendment, it restructures California’s political system regarding affirmative action in a way that unequally burdens women and members of racial or ethnic groups that have traditionally been subjected to discrimination. Thus... it would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

It is unclear precisely what governmental interest section 31 was intended to serve. If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment. Ironically, by effectively disadvantaging racial minorities and women in the political process, 7 without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.
It is uncommon for an attorney general to write such a letter to a state supreme court, but in November, Brown also urged court to review the petitions [materials; JURIST report] raised in reference to the passage of Proposition 8 [JURIST report], the voter initiative that amended the state constitution to make same-sex marriage illegal in California. Brown argued that "the petitions raise issues of statewide importance, implicating not only California's marriage laws but also the initiative process and the Constitution itself."





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Connecticut legislature approves same-sex marriage bill to comply with court ruling
Steve Czajkowski on April 23, 2009 9:50 AM ET

[JURIST] The Connecticut General Assembly [official website] on Wednesday approved a bill [HB 7395 materials] granting same-sex couples [JURIST news archive] the right to marry. The legislation codified the October ruling [opinion, PDF; JURIST report] by the Connecticut Supreme Court [official website], which held that the Connecticut Constitution [text] requires that same-sex couples be allowed to marry. The Connecticut Senate voted 28-7 to approve the bill, while the state's House of Representatives approved it by a vote of 100-44. The bill would turn all previous civil unions into marriages starting in October 2010. An amendment [News Times report] was also included with the legislation that allows religious groups to deny services and goods to same-sex couples for weddings and other functions. Governor M. Jodi Rell [official website] has said she will sign the legislation [Courant report].

If approved, the legislation would make Connecticut the second state to officially sanction same-sex marriage via a vote of the legislature. Vermont [JURIST report] was the first state to do so earlier this month. Two other states, Massachusetts and Iowa [JURIST reports], have also approved same-sex marriages through a high court ruling. California [JURIST news archive] had allowed same-sex marriages until November 2008, when Proposition 8 passed 52-48.






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Federal judge rules Guantanamo detainee habeas petition must proceed without delay
Ximena Marinero on April 23, 2009 9:23 AM ET

[JURIST] A judge in the US District Court for the District of Columbia [official website] ordered [text, PDF] Wednesday that Afghan Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [ACLU materials; JURIST news archive], detained since he was a teenager, be allowed to challenge his detention in federal courts without delay. The judge denied the Justice Department's motion to dismiss or delay [text, PDF] a challenge to Jawad's case that had objected to Jawad's habeas petition because of pending charges that had already been referred to a military commission. According to the judge, the suspension of such proceedings has the result that "[detainees] cannot exhaust their criminal proceedings without suffering delay." The order set a status conference for Jawad on April 27 and cited prior case precedents that require "prompt 'adjudication' of Guantanamo detainee's habeas cases" such as the US Supreme Court's July ruling in Boumediene v. Bush [opinion, PDF; JURIST report].

The US Court of Military Commission Review (USCMCR) [official website] in February granted [order, PDF; JURIST report] a government request [motion, PDF] for a 120-day continuance on an intermediate appeal in its case against Jawad. Jawad's trial was initially delayed [JURIST report] in December to give prosecutors more time to appeal the exclusion of his confession, which was deemed to have been coerced. The original military prosecutor of the case quit the military commission in September citing conscience reasons. Jawad has been charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his alleged role in a December 2002 grenade attack in Kabul that injured two US soldiers and an Afghan translator, and was reportedly only 15 years old at the time. In May 2008, 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.






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DOJ moves to dismiss Iran hostage suit
Christian Ehret on April 23, 2009 8:43 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] has filed a motion to dismiss [text] a lawsuit brought against Iran by hostages from the 1979 hostage situation [backgrounder] in Tehran. The class-action lawsuit, brought by from former hostages Charles Scot, David Roeder, Don Sharer, and the family of Barry Rosen, seeks $6.6 billion in damages. The DOJ argued in their motion, filed Tuesday, that the Algiers Accords [text, PDF] precluded lawsuits against Iran in regards to the hostage situation. The plaintiffs argue that section 1083 of the National Defense Authorization Act of 2008 [materials] allows them to bring private lawsuits against foreign governments that engage in terrorism. The DOJ responded that:

While Section 1083 may create a private right of action against foreign governments like Iran for other terrorist acts, it stops far short of creating a private right of action for claims arising out of the 1979 hostage taking. Because of the Court’s dismissal of plaintiffs’ prior suit, Congress was well aware that only a clearly expressed abrogation of the Algiers Accords would permit a cause of action arising out of the 1979 hostage taking.
In 2003, the US Court of Appeals for the District of Columbia [official website] ruled against [opinion, PDF] the hostages. In that case, the US intervened and successfully argued a sufficient interest in upholding the agreement reached in the Algiers Accords and that legislation enacted since the agreement had no effect on it. In 2004, the US Supreme Court [official website] denied [order text] the petitioners' request for certiorari.





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Moldova constitutional court confirms controversial election results
Ximena Marinero on April 23, 2009 7:42 AM ET

[JURIST] The Constitutional Court of Moldova [official website] on Wednesday validated the recount results of the April 5 election in which the Communist Party won 60 of the 101 parliamentary seats. The court issued two acts [MOLDPRES report], which cannot be appealed and are official as of the day adopted, confirming the results and validating the terms of the new members of parliament. According to the recount, the country's Communist Party obtained 49.98 percent of the votes out of a 57.4 percent voter turnout. The parliament must elect the new president with 61 votes, and if it is unable to do so within three attempts, the Moldovan Constitution [text] mandates that parliament be dissolved and general elections held again. The European Council Presidency [official website] called on [press release] the Moldovan government and the opposition "to start a dialogue that would restore calm in Moldova." Amnesty International [advocacy website] has urged Moldovan authorities to protect detainees [press release] blamed for the electoral riots from torture and ill-treatment by the police.

Earlier this month, Moldova's Constitutional Court ordered [JURIST report] the nation's Central Election Commission (CEC) to conduct a recount of the controversial parliamentary election. Opposition groups claimed that falsified voter registration rolls allowed government officials to fabricate votes, and boycotted the recount [Infotag report], opting instead to check voter lists for irregularities. The CEC dismissed the claims and decried attempts [MOLDPRES report] of opposition members to submit documents alleging proof of electoral fraud only minutes before official results [press release] were announced Tuesday. Some international groups, including the Organization for Security and Co-operation in Europe (OSCE) [official website], had approved [OSCE report, PDF] the voting process as being generally fair.






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China high court spokesman starts blog to open public communication
Devin Montgomery on April 22, 2009 4:23 PM ET

[JURIST] The spokesman for China's Supreme People's Court [English website; official website, in Mandarin], Sun Jungong, announced Wednesday that he had started writing his own blog [Sun weblog, in Mandarin] in order to directly communicate with the public. Sun said he will operate the blog in a semi-official capacity and that he would honestly answer questions posed there in an effort to make the judiciary more accessible to the public. Zhou Ze, a law professor quoted by a state-sponsored Xinhua report [text], said the creation of the blog signaled an increase in transparency and fairness in the country's courts.

China has taken a less favorable stance on blogs that criticize the government and in January, Chinese Human Rights Defenders (CHRD) [advocacy website] reported that Chinese activist and blogger Chen Qitang had been sentenced to two-and-a-half years in prison [press release; JURIST report] for disparaging remarks about the Chinese government he made on his blog [text, in Mandarin]. Chen made the comments while he was helping villagers in Sanshan Village, Nanhai District, Foshan City, Guangdong Province draft legal documents appealing the confiscation of their land by the local government.






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Sudan court sentences rebels to death for 2008 attack on Khartoum
Christian Ehret on April 22, 2009 3:36 PM ET

[JURIST] A Sudanese court on Wednesday sentenced 11 members of the Darfur [JURIST news archive] rebel group the Justice and Equality Movement (JEM) [advocacy website; BBC backgrounder] to death by hanging for their involvement in a 2008 attack on Khartoum [BBC report]. Out of seven other defendants [Al Jazeera report] tried in the proceedings, five were acquitted and two had their cases transferred to a different court due to mental issues and age. On Tuesday, the rebel group rejected efforts to negotiate with the Sudanese government by citing a failure to cooperate [AFP report] in a recent deal and the recent death sentences [Reuters report] handed down to ten other members of the group. In August, a Sudanese court sentenced [JURIST report] eight other rebels to death in connection with the same attack.

Part of JEM's refusal to cooperate with the Sudanese government is the ousting of humanitarian groups within the country. In March, Human Rights Watch (HRW) [advocacy website] called on [JURIST report] the League of Arab States [official website, in Arabic] to urge Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] to allow foreign aid agencies back into the country. In November, the Chief Prosecutor for the International Criminal Court [official website] (ICC) sought arrest warrants [JURIST report] for Darfur rebel group leaders for attacks unrelated to the 2008 Khartoum attacks. JEM agreed to cooperate [AFP report] but denied that any of their leaders were the subjects of the warrants.






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Supreme Court hears arguments in employment discrimination case
Devin Montgomery on April 22, 2009 2:53 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday heard oral arguments [day call, PDF; briefs] in Ricci v. DeStefano [oral arguments transcript, PDF; JURIST report], where 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. Petitioners were applicants who qualified for promotions based on their test scores but were denied promotions because the municipality said it would violate the Equal Rights Act of 1964 [text]. The US Court of Appeals for the Second Circuit found [opinion, PDF] that the government employer's actions were protected. Lawyers for the employees argued that the lower court erred by not requiring the municipality to show that its actions prevented any actual discrimination:

Neither equal protection nor Title VII justified New Haven's race-based scuttling of the promotions Petitioners earned through the civil service process mandated by Connecticut law. The lower court required no strong evidentiary basis that the City was acting to remedy or avoid any actual discrimination, but strong safeguards are needed to smoke out illegitimate uses of race and to extinguish the racial favoritism that civil service laws... are intended to prevent.

Governmental employment actions grounded in race must be strictly scrutinized because they engender divisiveness and cause race-grounded harm that the Constitution seeks to avert.
Lawyers for the municipality argued that the testing disparity was the kind of barrier that the law was designed to eliminate, and that employers should be given some flexibility in complying with the law.





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Norway considering war crimes charges against Israel leaders
Jay Carmella on April 22, 2009 12:13 PM ET

[JURIST] A top Norwegian prosecutor said Wednesday that she will look into a compliant filed by Norwegian lawyers accusing Israeli government figures of war crimes during the recent offensive in the Gaza Strip [BBC backgrounder]. The chief prosecutor at Norway's National Authority for Prosecution of Organised and Other Serious Crimes Siri Frigaard [ICTJ profile] will investigate the complaint, which alleges [AP report] that 10 Israelis, including former Prime Minister Ehud Olmert [JURIST news archive], Defense Minister Ehud Barak [official profile, in Hebrew] and former Foreign Minister Tzipi Livni [official profile], committed terror attacks against civilians. The lawyers' compliant was centered on the Norwegian interpretation of universal jurisdiction [AI backgrounder], which allows individuals to be charged Norway for committing war crimes, genocide or crimes against humanity despite the acts occurring internationally. Israel conducted its own internal investigation into the allegations, concluding that there was no wrongdoing [JURIST report]. Israel reiterated [AFP report] this position Wednesday, and human rights groups immediately responded by calling for an independent investigation [AP report] into war crimes allegations.

Last week, Israel announced [JURIST report] that it would not comply with a UN Human Rights Council (UNHRC) [official website] investigation into the war crimes. The probe was a result of the report [text, PDF] authored by UN Special Rapporteur Richard Falk [appointment release] that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US condemned [JURIST report] the report as biased.






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Supreme Court rules traditional test governs stay of deportation requests
Jaclyn Belczyk on April 22, 2009 10:39 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 7-2 in Nken v. Holder [Cornell LII backgrounder; JURIST report], retitled from Nken v. Mukasey, that an alien's stay of deportation request pending consideration of his petition for review is governed by the traditional test for stays, not by congressional revisions to the Immigration and Nationality Act reflected in 8 USC § 1252(f)(2) [text]. Jean Marc Nken is a native of Cameroon who fears persecution upon return to his home country. He was denied a stay of a deportation order while he pursued court review of the denial of his asylum claim. His lawyers originally asked the Court for a stay of deportation [application, PDF], but the Court granted full review to resolve the conflict over the proper standard of review. In vacating the decision below, which denied Nken's stay of deportation request, Chief Justice John Roberts wrote:

This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.
Justice Anthony Kennedy filed a concurring opinion, joined by Justice Antonin Scalia. Justice Samuel Alito filed a dissenting opinion, in which Justice Clarence Thomas joined.





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US prosecutors charge Afghan with funding Taliban terrorism with drug money
Lucas Tanglen on April 22, 2009 9:11 AM ET

[JURIST] The US Attorney's Office for the Southern District of New York [official website] on Tuesday announced charges [press release, PDF] against an Afghan of conspiring to finance terrorist activity. Haji Juma Khan, who was already detained on charges of narco-terrorism, is accused of providing the Taliban [JURIST news archive] with proceeds from his drug operation with knowledge that the money would be used in terrorist activities in Afghanistan [JURIST news archive]. The prosecution alleges that Khan was closely aligned with the Taliban in the course of his drug activities and that his organization sold enough morphine base fill the US heroin market for two years. Khan faces up to a life sentence and a minimum sentence of 20 years in prison if convicted.

In May, a jury in the US District Court for the District of Columbia [official website] convicted [JURIST report] Afghan national Khan Mohammed, who was originally held as an enemy combatant, on charges of drug distribution and narco-terrorism. That was one of the first prosecutions of the US anti-narco-terrorism effort [DEA program site], aimed at crippling terrorist organizations by stopping the sale of the drugs said to finance them. In September, Afghan tribal chief Haji Bashir Noorzai was convicted [NYT report] following his April 2008 indictment [text, PDF; JURIST report] for violation of US drug laws.






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Senate declassifies report implicating Bush officials in harsh interrogation policies
Ingrid Burke on April 22, 2009 8:22 AM ET

[JURIST] The US Senate Armed Services Committee (SASC) [official website] on Tuesday declassified [statement] a November 2008 report [text, PDF; JURIST report] detailing the extent of top Bush administration officials' involvement in implementing severe interrogation techniques employed by US military forces against terrorism suspects. According to the report, the interrogation techniques originated from a February 2002 memo signed by former US President George W. Bush declaring the Third Geneva Convention [text] inapplicable to the al Qaeda conflict and denying prisoner of war status to Taliban [JURIST news archives] detainees. The report claims that senior administration officials, including former Secretary of Defense Donald Rumsfeld, former Secretary of State Condoleezza Rice, and former Attorney General John Ashcroft [JURIST news archives] were directly involved in implementing the policies allowing harsh interrogation techniques at both Abu Ghraib and Guantanamo Bay [JURIST news archives]. The report concludes:

The abuse of detainees in US custody cannot simply be attributed to the actions of "a few bad apples" acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
The director of the American Civil Liberties Union (ACLU) [advocacy website] Washington Legislative Office responded [press release] to the release of the report, saying, "Once again, we are presented with clear-cut evidence that the Bush administration’s highest ranking officials were not only complicit in the use of torture, but were actively engaged in its implementation. It is now time to act on this evidence."

The declassification of the Senate report comes just after the Department of Justice (DOJ) [official website] released four top secret memos [press release; JURIST report] from the Office of Legal Counsel (OLC) [official website] outlining controversial CIA interrogation techniques and their legal rationale. The public release of the memos came in response to a Freedom of Information Act (FOIA) [text] lawsuit [materials] filed by the ACLU during the Bush administration. The ACLU has also called for an independent investigator [press release] to probe allegations of torture during the Bush administration. On Tuesday, President Barack Obama said that he would not rule out the possibility of prosecuting [transcript; JURIST report] lawyers responsible for authoring the memos. Obama had previously said that he would not pursue prosecutions of CIA interrogators [statement], a pledge which drew sharp international criticism [JURIST report]. Earlier this month, House Judiciary Committee Chairman John Conyers (D-MI) released a final version of a report [JURIST report] calling on current Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senator Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."





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DOJ considering dropping charges against former pro-Israel lobbyists
Lucas Tanglen on April 22, 2009 8:01 AM ET

[JURIST] The US Department of Justice (DOJ) [official website; JURIST news archive] might drop charges [case materials] of disclosing national defense secrets against former pro-Israel lobbyists Steven Rosen [Washington Post profile] and Keith Weissman, a senior official said Tuesday. Government sources told the AP that there is still some support for going to trial [AP report] with the case, which has been delayed repeatedly since the former employees of the American Israel Public Affairs Committee (AIPAC) [advocacy website] were indicted [JURIST report] under the 1917 Espionage Act [18 USC § 792 text] in August 2005. Rosen faces up to 20 years and Weissman up to 10, with the trial currently scheduled to begin in June. In a related story, Rep. Jane Harman (D-CA) defended herself [press release] Tuesday against reports [NYT report] that wiretapped [JURIST news archive] conversations revealed her agreeing to seek leniency in the case in exchange for political favors.

In February, the US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] that the former lobbyists could use classified documents [JURIST report] in their defense. In November 2007, a federal judge ruled [JURIST report] that then-US Secretary of State Condoleezza Rice and other senior administration officials must testify about whether they shared classified national defense information with lobbyists. In August 2006, Rosen and Weissman's constitutional challenge of the Espionage Act failed [JURIST report]. In January 2006, former Pentagon analyst Lawrence Franklin was sentenced [JURIST report] to 12 years, seven months in federal prison after pleading guilty to giving classified information to the lobbyists.






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Chile judge indicts three Pinochet-era officers for 'Caravan of Death' killings
Ximena Marinero on April 22, 2009 7:46 AM ET

[JURIST] A Chilean judge has charged [press release, in Spanish] three former Pinochet-era military officers as accomplices for their role in the October 1973 killings of 14 leftist political opponents as part of the so-called "Caravan of Death" [BBC backgrounder]. Judge Victor Montiglio of the Santiago Court of Appeals indicted and ordered the arrests of General Gonzalo Santelices [La Nacion backgrounder, in Spanish], Lieutenant Pablo Martinez, and Major Patricio Ferrer on Monday. Santelices and Martinez were granted bail [La Nacion report, in Spanish] Tuesday, and bail is under consideration for Ferrer. The Court of Appeals has 48 hours to approve or deny the orders, during which time the men will continue to be held at a military police battalion. A lawyer for the Ministry of Interior's Human Rights Program [official website, in Spanish] said that the prosecution intends to appeal Montiglio's resolution to raise the charges of all three men to the level of principal actors rather than accomplices. Santelices's lawyer has alleged that the former general was only a student following orders [Radio Cooperativa report, in Spanish] to deliver the 14 members of the Socialist Party to the Caravan. Eight others have been charged with murder in the incident, including former General Sergio Arellano Stark, who is currently serving time for a separate conviction under house arrest due to dementia.

The Chilean Supreme Court sentenced five former military officers to prison [JURIST report] for their role in the Caravan of Death in October and found Stark responsible for leading the caravan under orders from General Augusto Pinochet [BBC backgrounder; JURIST news archive] to dispose of potential political opponents. In November 2006, Montiglio indicted Pinochet [JURIST report] and placed him under house arrest in connection with the firing-squad deaths of two of Allende's bodyguards. Pinochet died in December 2006 before being brought to trial [JURIST report]. More than 75 Chilean dissidents, many of whom had turned themselves in to authorities, are thought to have been killed by the "Caravan of Death."






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Federal judge orders Sudan funds unfrozen to compensate USS Cole victims' families
Matt Glenn on April 22, 2009 7:43 AM ET

[JURIST] A lawyer for the relatives of 17 sailors killed in the 2000 al Qaeda attack [US DOD inquiry report] on the USS Cole [official website; JURIST news archive] said Tuesday that the families will receive compensation from the Sudan government after a judge for the US District Court of the Southern District of New York [official website] ordered last week that banks release $13.4 million in previously blocked funds. The Terrorism Recovery Insurance Act of 2002 [text, PDF] allows judges to unblock funds where judgments have been rendered against terrorist states. Sudan denies any involvement in the bombing. Family members will receive pecuniary damages under the Death on the High Seas Act [46 USC § 30302 text], but the act does not allow them to recover punitive damages. The lawyer for the families said each family will receive between $200,000 and $1.2 million [AP report]. The families also plan to seek punitive damages [JURIST report] of up to $50 million under the Justice for State Sponsored Terrorism Act [text] passed last year according to their lawyer.

In 2007, the government of Sudan announced plans to appeal the original judgment [JURIST reports] of nearly $8 million, arguing that as a sovereign nation it was not subject to US Courts and denying any role in the bombing. A judge for the US Circuit Court for the Eastern District of Virginia [official website] found Sudan liable in 2007 for the bombing after previously rejecting a motion by Sudan to dismiss the suit [JURIST reports]. The court originally allowed the suit [JURIST report] in 2005.






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Russia court orders release of former Yukos lawyer
Andrew Gilmore on April 22, 2009 7:32 AM ET

[JURIST] A Russian court Tuesday ordered the release on parole [RIA Novosti report] of Svetlana Bakhmina, the former lawyer for Russian oil firm OAS Yukos Oil Co. [TIME backgrounder]. Bakhmina was convicted [JURIST report] of embezzlement and tax evasion in 2006 for her part in a scheme to strip assets worth over $300 million from a Yukos subsidiary. As a lawyer for Yukos, Bakhmina worked closely with the company's former chief executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his former business partner, Platon Lebedev [defense website], who were convicted and jailed in 2005 on similar fraud and tax evasion charges stemming from an alleged attempt to embezzle and strip Yukos of valuable assets. Earlier Tuesday, Khodorkovsky and Lebedev both pleaded not guilty [JURIST report] to additional charges of money laundering and embezzlement. The two men are already facing trial on further embezzlement and money laundering charges, which they have challenged, alleging that the evidence against them is insufficient [RIA Novosti report].

Last month, a Russian court refused a request [JURIST report] by Khodorkovsky and Lebedev to have the charges against them dropped, 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 against former Russian president and current Prime Minister 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.






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Federal court to try Somali piracy suspect as adult
Andrew Gilmore on April 22, 2009 6:23 AM ET

[JURIST] Alleged Somali pirate Abduwali Abdukhadir Muse, captured by US forces following an attempted attack on the container ship Maersk Alabama [corporate backgrounder], was charged [compliant, PDF] Tuesday and will be tried as an adult following a ruling by federal magistrate judge Andrew Peck of the US District Court for the Southern District of New York [official website]. Muse, whose exact age is unknown [Washington Post report], has been charged with five counts relating to the pirate attack on the Alabama, including committing an act of piracy as defined by the law of nations, conspiracy to seize a ship by force, conspiracy to take hostages, and two counts relating to the use of a firearm during commission of a crime. Muse's father testified via telephone [NYT report] in an attempt to establish his son's age for the court, but Peck discredited the testimony after the elder Muse was unable to give precise dates of birth for any of Muse's siblings. The government complaint alleges that Muse coordinated the attack, and presented himself to the ship's crew as the leader of the attacking gang. If the case proceeds to trial, it will be the first major piracy trial in the US since 1885 [AP report].

Earlier this month, the Commandant of the US Coast Guard called for greater enforcement [JURIST report] of international piracy laws. In March, the European Union (EU) [official website] announced an agreement with Kenya [JURIST report] to transfer suspected pirates captured by EU counter-pirate operations into Kenyan custody for prosecution. In December, the UN Office on Drugs and Crime (UNODC) [official website] called for greater judicial cooperation [JURIST report] to combat piracy off the coast of Somalia. In October, the UN Security Council unanimously approved Resolution 1838 [text, PDF; press release], condemning all acts of piracy and armed robbery off the coast of Somalia, and calling on states to "deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia." Although maritime piracy is increasingly widespread, Somalia's coast has been ranked as the most dangerous in the world [BBC report] due to a surge in attacks on ships carrying traded goods or humanitarian aid [NPR report].






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Obama open to prosecuting CIA interrogation memo authors
Jaclyn Belczyk on April 21, 2009 4:25 PM ET

[JURIST] US President Barack Obama said Tuesday that he would not rule out the possibility of prosecuting [transcript] lawyers responsible for authoring memos released last week [JURIST report] outlining CIA interrogation policies. Obama had previously said that he would not pursue prosecutions of CIA interrogators [statement], a pledge which drew sharp international criticism [JURIST report]. Obama confirmed Tuesday that he would not seek the prosecution of agents involved in the interrogations, but said that he was open to holding the memos' authors accountable for the alleged abuse. report] holding lawyers who authored the memos accountable for the interrogation techniques, including waterboarding [JURIST news archive], which many have described as "torture." Obama said that Attorney General Eric Holder [official profile] would determine whether they would be prosecuted. In response to Obama's statements, Senate Judiciary Committee chairman Patrick Leahy (D-VT) [official website] called for the resignation [AFP report] of federal judge Jay Bybee, who authored one of the memos while serving as assistant attorney general during the Bush administration. American Civil Liberties Union (ACLU) [advocacy website] executive director Anthony Romero said [press release], "Torture is a crime, and we are hopeful that President Obama's comments today signal a new acknowledgment of the need for criminal investigations of those who authorized, legally justified and carried out these unlawful acts..

The public release of the memos came in response to a Freedom of Information Act (FOIA) [text] lawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] during the George W. Bush administration. The ACLU has also called for an independent investigator [press release] to probe allegations of torture during the Bush administration. Earlier this month, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) released a final version of a report [JURIST report] calling on Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Leahy also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."






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Supreme Court hears school strip search, timely appeal cases
Andrew Morgan on April 21, 2009 3:59 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday heard oral arguments [day call, PDF; briefs] in two cases. In Safford United School District No. 1 v. Redding [oral arguments transcript; JURIST report], the Court will consider whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy. The school district appealed a May 2008 decision [opinion, PDF] by the US Court of Appeals for the Ninth Circuit finding that the student's Fourth Amendment rights were violated when school officials conducted a search of her undergarments based on the suspicion that she was carrying prescription-strength ibuprofen for recreational use. Relying on the Court's decision in New Jersey v. T.L.O [opinion], the Ninth Circuit found that the search was neither "justified at its inception" nor "reasonably related in scope to the circumstances," and that since the school officials were not entitled to qualified immunity because these principles were were clearly established at the time of the search. The school district, and the US as amicus curiae, argued that:

The search of Savana Redding in this case was constitutional because Mr. Wilson had reason to suspect that she possessed contraband which posed a health and safety risk. Therefore, searching any place where she might be reasonably hiding that contraband was constitutionally permissible
Counsel for the respondent argued that an intrusive search requires a particularized suspicion and that the search was unconstitutional because "there was no suspicion that these objects were going to be found inside Savana's undergarments."

In U.S. ex rel. Eisenstein v. City of New York [oral arguments transcript, PDF; JURIST report], the Court was asked to determine the time limit for filing an appeal in a case where the plaintiff sues on behalf of the US, but the government declines to intervene. Eisenstein and four other New York City employees sued the city in a qui tam action, alleging that the city violated the False Claims Act [text] by imposing a fee on non-resident city employees. Eisenstein filed an appeal with the US Court of Appeals for the Second Circuit 54 days after a district court dismissed the case for failure to state a claim. Federal Rule of Appellate Procedure 4(a)(1) [text] allows 30 days for parties in a civil suit to appeal generally, but extends the time limit to 60 days when the US is a party. The Second Circuit found [opinion, PDF] that the US was not a "party" in a qui tam case within the meaning of the rule when it chose not to intervene, and therefore the appeal was untimely. Eisenstein argued that "the government is a party in qui tam actions because it is named, served, and bound and a real party in interest, all without ever intervening or actively participating" and that the Court should reject any "participation-based test" when assessing the government's party status. The city argued that the US is clearly not a party to the suit until it intervenes, because it must file a motion to intervene after 60 days and intervention "is the method by which a person who is not a party becomes a party."





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Spain court charges Basque leader with murder for role in 2008 car bombing
Safiya Boucaud on April 21, 2009 3:32 PM ET

[JURIST] A Spanish judge on Tuesday charged Jurdan Martitegi Lizaso [El Pais backgrounder, in Spanish], the alleged leader of the Basque separatist group ETA [BBC backgrounder; JURIST news archive] with murder for allegedly executing a car bomb in May 2008 that killed a Spanish policeman. Three other ETA members were also charged [AFP report] in connection with the incident. Martitegi and three others were arrested [JURIST report] last Saturday in France. Six other ETA members were also detained in Spain last weekend for their alleged roles in the car bombing.

In February, Spain's Supreme Court [official website, in Spanish] unanimously banned [JURIST report] the Basque separatist political groups Democracy 3 Million (D3M) and Askatasuna [orders, PDF, in Spanish] from participation in the coming March elections. In January, a Spanish court dismissed the case against Basque Regional Prime Minister Juan José Ibarretxe [official profile]. He and the two leaders of the Basque socialist party were charged [JURIST report] with illegally communicating with the banned Batasuna party [BBC backgrounder], the political wing of the ETA. In November, French authorities arrested [JURIST report] alleged former ETA leader Mikel Garikoitz Aspiazu Rubina [BBC backgrounder] near the country's border with Spain. In September, the court banned [JURIST report] the Basque Nationalist Action Party (ANV) from taking part in political activities because of its alleged ties to Batasuna.





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US journalist Saberi appeals Iran espionage conviction
Brian Jackson on April 21, 2009 12:42 PM ET

[JURIST] The lawyer for imprisoned US journalist Roxana Saberi [advocacy website; JURIST news archive] on Tuesday appealed her recent conviction for espionage [JURIST report]. A spokesperson for the Iranian judiciary reportedly said that he hoped her eight-year sentence would be changed [Reuters report]. On Monday, Iran's top judge Ayatollah Mahmoud Hashemi Shahrud urged a fair appellate process [JURIST report]. On Sunday, President Mahmoud Ahmadinejad sent a letter to prosecutor general Saeed Mortazavi, which contained implicit criticism [Financial Times report] of the judiciary's handling of the Saberi trial. In response to Ahmadinejad's letter, Iranian Information Minister Gholam-Hossein Mohseni Ejeie stated that Saberi's trial was held in accordance with Iranain law [IRNA report].

Saberi was originally arrested [NYT report] in March after buying a bottle of wine, as alcohol consumption is illegal under Iranian law. It was believed that the charges against Saberi would be working without Iranian press credentials, but the Iranian government charged her with espionage [JURIST report], accusing her of passing classified information to US intelligence services. Saberi was tried last week behind closed doors.






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Senate minority leader criticizes closure of Guantanamo without plan for detainees
Bhargav Katikaneni on April 21, 2009 12:04 PM ET

[JURIST] US Senate minority leader Mitch McConnell (R-KY) [official website] said [press release] Tuesday that the Obama administration doesn't have a plan to deal with detainees at Guantanamo Bay [JURIST news archive] once the facility closes. McConnell, speaking before the Senate, called the facilities at the military prison "safe and secure" and said that the administration "doesn't know what to do with" the 240 detainees currently being held there. He called on US President Barack Obama to prove that closing the prison made America safer and cited a Department of Defense (DOD) [official website] report [text, PDF] that many former detainees had committed terrorism after being released. He said:

The administration needs to tell the American people what it plans to do with these men if they close Guantanamo. Two years ago the Senate voted 94-3 against sending these killers to the United States. Foreign countries have thus far been unwilling to take them in any significant numbers. And even if countries were willing to take them, there’s an increasing probability that some of these murderers would return to the battlefield.
In January, Obama issued an executive order [text; JURIST report] directing the military prison be closed "as soon as practicable and no later than one year from the date of this order." In February, US Attorney General Eric Holder confirmed that the military facility would be closed despite improvements [JURIST report] and an official report [JURIST report] finding that conditions at the prison are now in compliance with the Geneva Conventions. Last month, top US officials met with European counterparts to discuss the transfer [JURIST report] of many of the detainees to other countries before the facility closes. The European Parliament called on its member countries to accept [JURIST report] Guantanamo detainees, and Lithunia, Ireland, Germany, and Portugal [JURIST reports] have expressed willingness to accept them. A spokesperson for the DOD said in January that the US would not change its policy [JURIST report] on the transfer of Guantanamo Bay detainees to Saudi Arabia, despite reports that two former prisoners have joined al Qaeda in Yemen.





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Khodorkovsky pleads not guilty to embezzlement and money laundering
Brian Jackson on April 21, 2009 11:53 AM ET

[JURIST] Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his former business partner Platon Lebedev pleaded not guilty [RIA Novosti report] Monday to charges of money laundering and embezzlement. Khodorkovsky made two statements to the court, one reflecting his opinion on the charges, and the other specifically refuting [defense documents, PDF] each charge. The Russian Prosecutor General's Office [official website, in Russian] filed these new charges against Khodorkovsky and Lebedev in February, alleging that the pair embezzled over $100 million [JURIST report] from Khodorkovsky's former company, Yukos [JURIST news archive]. If convicted, Khodorkovsky and Lebedev could face 22 years in prison.

Khodorkovsky is currently serving an eight-year prison term for six counts of fraud [JURIST report], for which he was convicted in 2005. Khodorkovsky applied for early release last July, but his application was rejected [JURIST reports] by a Russian judge in August because he disobeyed guards at the Krasnokamensk penal colony and refused to participate in a training program. Khodorkovsky appealed [JURIST report] that decision in September.






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Supreme Court decides Iran compensation, veterans benefits, search and seizure cases
Jaclyn Belczyk on April 21, 2009 10:27 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued three opinions Tuesday. The Court ruled [opinion, PDF] in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi [Cornell LII backgrounder; JURIST report] that the brother of dissident Cyrus Elahi, assassinated in Paris in 1990, cannot collect on a default judgment he holds against Iran by attaching a $2.8 million judgment obtained by the Iranian Ministry of Defense against California-based Cubic Defense Systems [corporate website]. Dariush Elahi was awarded $11.7 million in compensatory and $300 million in punitive damages after Iran refused to respond to his 2000 lawsuit brought in a Washington federal court, alleging that the Iranian government was responsible for his brother's death. Iran originally won the $2.8 million judgment against Cubic before the International Chamber of Commerce (ICC) [official website] for Cubic's contract breach following the Iranian Islamic Revolution of 1979 [BBC backgrounder]. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the attachment was valid under the Terrorism Risk Insurance Act of 2002 (TRIA) [text, PDF]. In reversing the lower court's ruling, Justice Stephen Breyer wrote:

We ultimately hold that the Cubic Judgment was not a "blocked asset" at the time the Court of Appeals handed down its decision in this case. We recognize that since that time new Executive Branch action may have "blocked" that asset; but, in light of the posture of the case, we do not decide whether it has done so. Rather, we determine that Elahi cannot attach the Cubic Judgment regardless, for the Judgment is "at issue" in a claim against the United States before the Iran-U.S. Claims Tribunal. The Judgment consequently falls within the terms of Elahi’s waiver.
The Court's decision was unanimous as to parts I and II. Justice Kennedy filed an opinion dissenting from Part III, which held that Elahi had waived his right to attachment, in which Justices David Souter and Ruth Bader Ginsburg joined.

The Court ruled [opinion, PDF] 6-3 in Shinseki v. Sanders [Cornell LII backgrounder; JURIST report], retitled from Peake v. Sanders, that the US Department of Veterans Affairs (VA) [official website] does not bear the burden of proof that it adequately informed a veteran of the information needed to process a benefits claim under the Veterans Claims Assistance Act (VCAA) [text, PDF]. The case involves two veterans whose benefits claims were denied. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the burden was on the VA to prove that notice was not prejudicial. In reversing that decision, Breyer wrote:
In our view, the Federal Circuit’s "harmless-error" framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA, and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law.
Souter filed a dissenting opinion, in which Ginsburg and Justice John Paul Stevens joined.

Finally, the Court ruled [opinion, PDF] 5-4 in Arizona v. Gant [Cornell LII backgrounder; JURIST report] that the Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured. Arizona was appealing an Arizona Supreme Court ruling [opinion, PDF] that Rodney Joseph Gant's constitutional rights were violated when police searched his car after he was handcuffed and seated in a police car. In affirming the lower court decision, Stevens wrote:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search.
Justice Antonin Scalia filed a concurring opinion. Breyer filed a dissenting opinion. Justice Samuel Alito filed a dissenting opinion, joined by Chief Justice John Roberts and Justice Anthony Kennedy, and joined in part by Breyer.





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Turkish court allows assassination case to be merged with coup plot prosecution
Amelia Mathias on April 21, 2009 8:18 AM ET

[JURIST] Turkey's Eleventh Criminal Court in Ankara on Monday granted permission for a case involving the 2006 killing of a senior judge by lawyer Alparslan Aslan to be merged with a larger case against alleged Ergenekon [BBC backgrounder] coup leaders. Ergenekon is accused of planning to destabilize the country's Justice and Development Party (AKP) [official website, in Turkish] led government in an effort to incite a military coup. The court found that the judge's killing could have been part [UPI report] of the group's efforts [Hurriyet Daily News report], which also included the creation of a supposed "hit list" of prominent Turkish figures, bombings at the daily newspaper Cumhuriyet [media website, in Turkish], and the assassination of the journalist Hrant Dink. In order for the cases to be merged, the Thirteenth Criminal Court, which is hearing the Ergenekon case, must also approve the move. The Supreme Court had previously permitted the two cases to be joined, and if they are, they will be tried in Istanbul.

The court's decision comes after the arrest of eight professors and former university officials [NYT report] allegedly connected to Ergenekon on Friday. In March, 56 people were arrested in connection with the group [JURIST report], including two former generals. Earlier that month, a Turkish court ordered the arrest [JURIST report] of Cumhuriyet journalist Mustafa Balbay and internet publisher Neriman Aydin for their alleged involvement the coup plot. There are currently more than 100 suspects in custody, with 40 arrested January 7, another 12 arrested January 12, and 30 arrested January 19 [JURIST reports]. The suspects include journalists, academics, army officers, policemen, and Turkish Workers' Party [party website, in Turkish] leader Dogu Perincek [JURIST report]. In October the High Criminal Court in Istanbul began the trial [JURIST report] of 86 defendants allegedly involved in the coup plot.






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UN racism delegates walk out to protest anti-Israel comments by Iran president
Adrienne Lester on April 21, 2009 8:16 AM ET

[JURIST] Delegates to the UN Durban Review Conference on Racism [official website] walked out of a speech [text, PDF] on Monday by Iranian president Mahmoud Ahmadinejad [official profile; JURIST news archive] after he described Israel as "totally racist." Additionally, a protester dressed as a clown threw his rubber nose at the Iranian president. UN Secretary-General Ban Ki-Moon [official profile] released a statement [text] in response to Ahmadinejad's speech saying:

I deplore the use of this platform by the Iranian President to accuse, divide and even incite. This is the opposite of what this Conference seeks to achieve. This makes it significantly more difficult to build constructive solutions to the very real problem of racism.
Despite the disruptions, the UN conference on racism passed a draft resolution [text, PDF] assessing the implementation of the Durban Declaration and Program of Action (DDPA) [text, PDF] and evaluating the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination [text].

The conference was the first of its kind [JURIST news report] since 2001. Many critics viewed the 2001 conference as being anti-Israel, which undoubtedly led to the heightened concerns leading up to this year's conference. The US, Australia, Canada, Germany, Israel, Italy, Netherlands, and New Zealand boycotted this year's conference due to the draft declaration's position on Israel and the Middle East. Also, the US has refused to continue negotiations [press release] on the draft declaration, which the Department of State [official website] believes "must not single out any one country or conflict, nor embrace the troubling concept of 'defamation of religion' [and] ... should not go further than the DDPA on the issue of reparations for slavery." In preparation for the conference, the UN Human Rights Council (UNHRC) [official website] passed a resolution [JURIST report] last month calling for laws against defamation of religion.





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Obama defends release of CIA interrogation memos
Eszter Bardi on April 21, 2009 8:10 AM ET

[JURIST] US President Barack Obama on Monday defended [speech transcript] his recent decision to release [DOJ press release, JURIST report] memos describing interrogation methods employed by CIA [official website] officials in questioning Guantanamo Bay [JURIST news archive] detainees. He made the remarks to CIA officials who had expressed concern that their release would compromise the agency's ability to conduct effective interrogations. Obama said that due to widespread speculation about the memos, it was in the best interest of the US to acknowledge publicly their existence. Obama also said that while information on the techniques was released, he would continue to protect the identities of CIA agents:

I have fought to protect the integrity of classified information in the past, and I will do so in the future. And there is nothing more important than protecting the identities of CIA officers. So I need everybody to be clear: we will protect your identities and your security as you vigorously pursue your missions. I will be as vigorous in protecting you as you are vigorous in protecting the American people.
The public release of the memos came in response to a Freedom of Information Act (FOIA) [text] lawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] during the George W. Bush administration. The ACLU has also called for an independent investigator [press release] to probe allegations of torture during the Bush administration. Obama has pledged not to prosecute the individual CIA agents involved in the alleged illegal interrogations, despite calls [JURIST reports] by UN special rapporteur on torture Manfred Nowak [official profile, DOC] and others to do so.





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Rwanda court rejects detained Congo militia leader lawsuit
Andrew Gilmore on April 21, 2009 7:42 AM ET

[JURIST] A Rwandan court rejected a lawsuit brought by captured Democratic Republic of Congo (DRC) rebel leader Laurent Nkunda [BBC profile] seeking his release from Rwandan custody. Nkunda was apprehended by Rwandan authorities in January near the DRC border after a joint DRC-Rwandan military operation to capture him and root out Rwandan Hutu rebels operating in the DRC. He is the leader of the National Congress for the Defense of the People (CNDP) [group website], a rebel group operating in the eastern DRC province of Nord-Kivu. According to Nkunda's lawyer, he is being held illegally [Retuers report] without charges or access to counsel. Nkunda faces an uncertain legal future [JURIST report], with the DRC government having called on Rwanda to extradite Nkunda to DRC [BBC report] where he would face charges for atrocities allegedly committed by forces under his command. Another possibility for Nkunda is extradition to the International Criminal Court (ICC) [official website] in The Hague. While there is no arrest warrant or case outstanding against Nkunda, the ICC has issued an arrest warrant [JURIST report] and prepared a case against his deputy in the CNDP, Bosco Ntaganda [ICC materials], for war crimes committed in the DRC, including the recruitment and use of child soldiers [JURIST news archive]. Nkunda has repeatedly denied allegations of war crimes [JURIST report] against him and the CNDP.

In November, head of the UN Peacekeeping Mission to the Democratic Republic of Congo (MUNOC) [official website] Alan Doss condemned the killing of civilians in Nord-Kivu by militia groups as war crimes [JURIST report]. Prior to Doss' statement, MUNOC announced that it had received "credible reports" that civilians had been targeted by militia groups including Nkunda's CNDP. Earlier in November, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] reasserted [JURIST report] that the ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed in Nord-Kivu, and that his office intends to punish those responsible.






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Federal judge moves to protect Madoff assets from bankruptcy creditors
Andrew Gilmore on April 21, 2009 6:42 AM ET

[JURIST] Judge Denny Chin of the US District Court for the Southern District of New York [official website] issued a restraining order Monday that protects from bankruptcy more than $100 million in assets of financier Bernard Madoff [JURIST news archive]. Chin signed the order to protect assets that will likely be forfeited [AP report] by Madoff to the US government as a result of his guilty plea to securities fraud charges [complaint, PDF; JURIST report] stemming from his alleged multi-billion dollar Ponzi scheme. The order comes on the same day that a federal bankruptcy judge appointed an interim trustee [Bloomberg report] to oversee Madoff's assets ahead of attempts by injured investors to recoup losses suffered in the scheme. Madoff remains in custody following his plea.

Last month, Madoff pleaded guilty [JURIST report] to security fraud charges for his alleged involvement in a multi-billion dollar Ponzi scheme. In February, 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, then-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, then-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.






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South Korea court clears blogger of charges
Safiya Boucaud on April 20, 2009 3:29 PM ET

[JURIST] The Seoul Central District Court on Monday acquitted a South Korean blogger charged with spreading misleading financial information online. Park Dae-sung had been charged [UNHCR report] with spreading false and misleading financial information for writing that the South Korean government had ordered local banks not to buy US dollars in an effort to stabilize currency. The judge concluded [Korea Times report] that Park did not violate the country's telecommunications law, and that he could not have been aware that the information he was posting was misleading. The judge also said that even if Park knew the information to be false that there was no intent that he meant any harm. The prosecutors' office indicated that they will appeal because they believed that the court failed to apply the law properly.

While print journalists have long faced imprisonment [JURIST news archive] in some countries for their work, the advent of blogging has resulted in a new group subject to sanctions for controversial 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.






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Supreme Court hears Iraq immunity, English language school funding cases
Jaclyn Belczyk on April 20, 2009 2:40 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday heard oral arguments [day call, PDF; briefs] in two cases. In Iraq v. Beaty [oral arguments transcript, PDF; JURIST report] and Iraq v. Simon, 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 Foreign Sovereign Immunities Act (FSIA) [28 USC § 1602 et seq. text] creates exceptions to the general rule that states cannot be sued in US courts for states designated as sponsors of terrorism. 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. Counsel for the Iraqi government argued that the plain language of the statute grants Iraq immunity from suit because it is no longer designated a terrorism sponsor. Counsel for the respondents argued, "[The FSIA] says if you are the victim of torture by a nation designated as a state sponsor of terror and that designation changes so that you are no longer on that list, then you still have a cause of action under the FSIA. The fact that the country changes its ways and gets de-designated doesn't change that result."

In Horne v. Flores [oral arguments transcript, PDF] and Speaker of the Arizona House of Representatives v. Flores, 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]. Counsel for the petitioners argued that the district court, "blinded itself to the significant changes structurally as well as the progress that had been made and just said it doesn't matter because this is all about funding, and that is not true." Counsel for the respondents argued, "When the district court issued its initial judgment in 2000, what the court found was that there was a systemic violation of the EEOA. And the court further found that the program deficiencies were the result of the lack of funding rationally related to the programs."






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Senegal appeals court overturns criminal homosexuality convictions
Ingrid Burke on April 20, 2009 11:01 AM ET

[JURIST] As appeals court in Senegal on Monday ordered the release of nine members of AIDS awareness group AIDES Senegal who had been convicted of sodomy and sentenced to eight years in prison in January. Having been officially charged with acts against nature and the creation of an association of criminals, the men appealed [AFP report], asserting that police reports surrounding the arrests had relied primarily on anonymous tips. Under Senegalese Penal Code Article 3.913, homosexuality is punishable by up to five years in prison or up to 1,500,0000 CFA francs. The defendants were sentenced to an additional three years due to the trial court's ruling that their organization was engaged in actively recruiting conversions to homosexuality. The Joint UN Program on HIV/AIDS (UNAIDS) [official website] applauded [press release] the appellate court's holding, marking the decision as an important step toward reducing discrimination to the country's homosexual population.

The trial court's January decision was met with widespread international criticism. UNAIDS, the UN Development Programme (UNDP), and the French and Swedish embassies, on behalf of the European Union, have been advocating the release of the prisoners since their sentencing. The International Gay and Lesbian Human Rights Commisssion (IGLHRC) and the International Centre for the Legal Protection of Human Rights (INTERIGHTS) [advocacy websites] have both urged [statement] the Senegalese government to repeal the sodomy law. The Society for AIDS in Africa and the International AIDS Society [advocacy websites] issued a joint statement [text, PDF] in January asserting the necessity of overcoming state-sanctioned discrimination toward homosexuals as an integral step in overcoming the HIV threat in Senegal. In December, the UN General Assembly [official website] split [JURIST report] over the the issue of decriminalizing homosexuality [press release] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations, including many African countries, signed an opposing statement.






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Supreme Court takes speedy trial, First Amendment, prosecutor immunity cases
Matt Glenn on April 20, 2009 10:25 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] Monday in three cases. In Bloate v. United States [docket; cert. petition, PDF] the Court will consider whether time granted to prepare pretrial motions is excludable under 18 USC § 3161(h)(1) [text], which lists exceptions to the requirement that a criminal defendant be tried within 70 days of indictment or his first appearance in court. The US Court of Appeals for the Eighth Circuit upheld [opinion, PDF] Bloate's conviction, ruling that time granted to file pretrial motions is not excludable. Other circuits are split on the issue.

In United States v. Stevens [docket; cert. petition, PDF] the Court will consider whether 18 USC § 48 [text], which bans depictions of animal cruelty, violates the First Amendment. The US Court of Appeals for the Third Circuit held [opinion, PDF] that the law illegally restricts speech.

In Pottawattamie County v. McGhee [docket; cert. petition, PDF] the Court will consider:

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly (1) violated a criminal defendant’s "substantive due process" rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial.
The US Court of Appeals for the Eighth Circuit held [opinion, PDF] that prosecutors were not protected from suit by absolute immunity.





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Iran top judge urges fair appeals process for jailed US journalist
Benjamin Hackman on April 20, 2009 8:33 AM ET

[JURIST] Iran's judiciary on Monday ordered fair appellate proceedings for a US journalist convicted [JURIST report] this week of espionage and sentenced to eight years in prison. Iran's top judge Ayatollah Mahmoud Hashemi Shahrudi [BBC profile] said the appeal [BBC report] by journalist Roxana Saberi [BBC profile], a dual US-Iran citizen who was originally arrested for illegally purchasing alcohol, should be fair and accurate. Shahrudi's declaration came after Iranian President Mahmoud Ahmadinejad [BBC profile] implicitly criticized [Financial Times report] the judiciary's handling of Saberi's case. On Sunday, Ahmadinejad told [IRNA report; JURIST report] Tehran prosecutor Saeed Mortazavi to manage the appeal in a way that allows Saberi to defend herself freely. Saberi's lawyer said he would file an appeal [AFP report] by week's end.

Last year, the Committee to Protect Journalists [advocacy website] reported that Iran ranked sixth in the world [report] for total number of imprisoned journalists. In the past two years, Iran has arrested several journalists and scholars on espionage charges. In 2007, Iran accused four Iranian-Americans of belonging to a US-organized spy network. Iran formally charged [JURIST report] Iranian-American scholar Dr. Haleh Esfandiari [WWC profile] for allegedly plotting "against the sovereignty of the country." Iran also charged Dr. Kian Tajbakhsh [OSI press release] and Radio Farda [media website] correspondent Parnaz Azima with allegedly engaging in an espionage conspiracy [JURIST report]. An Iranian judge said that Esfandiari and Tajbakhsh admitted to carrying out some "activities" [JURIST report], although it was unclear if their statements were tantamount to an admission of spying.






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Rights group calls on Hamas to end internal violence against Israel supporters
Eszter Bardi on April 20, 2009 8:11 AM ET

[JURIST] Palestinian Hamas [GlobalSecurity backgrounder] authorities should end the systematic detention, torture, and execution of supporters of Israel and the rival Fatah party [GlobalSecurity backgrounder], according to a report [text, PDF; press release] released Monday by Human Rights Watch (HRW) [advocacy website]. HRW said the tactics had been documented since December. It said that even though Israel withdrew its forces from the Gaza strip in early 2009, Hamas has continued its practice of extraordinary internal violence in the region, leading to 14 deaths and other human rights violations since January:

Of particular concern is the widespread practice of maiming people by shooting them in the legs, which Hamas first used in June 2007, when it seized control inside Gaza from Fatah. According to the Independent Commission for Human Rights (ICHR), the human rights ombudsman organization of the Palestinian Authority, unidentified gunmen in masks deliberately inflicted bullet wounds to the legs of at least 49 people between December 28, 2008 and January 31, 2009...
...Abductions and severe beatings are another major concern. According to ICHR, unidentified perpetrators physically abused 73 Gazan men from December 28 to January 31, causing broken legs and arms. Human Rights Watch documented three such cases of Fatah supporters assaulted during and after the Israeli offensive, as well as one case of what appeared to be a politically motivated house arrest.
The group urged Hamas authorities to hold accountable those responsible for using the methods, which it said violated the Palestinian constitution [text, PDF], the UN Convention Against Torture [text], and the International Covenant on Civil and Political Rights [text]. Hamas denied that it took part in politically motivated attacks but has promised to investigate [Reuters report] any attacks aimed at Fatah.

Earlier this month, Hamas said that it would cooperate [JURIST report] with a UN Human Rights Council [official website] mission sent to the region to investigate possible war crimes that occurred during hostilities with Israel. In February, Palestinian leaders asked the International Criminal Court (ICC) [official website] to consider prosecuting Israel authorities for war crimes it had allegedly committed in the Gaza region, but the ICC said it was not sure whether it would have jurisdiction over the region [JURIST report], because it was not recognized as a state by much of the international community. In January, Israeli government authorities responded [JURIST report] to Hamas violence directed at Israel by filing two letters of complaint [text; second letter text] with UN Secretary-General Ban Ki-moon and warned militants that they would pay a "heavy price" [AP report] if attacks continued.





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UN racism conference begins as US and other nations boycott
Jay Carmella on April 20, 2009 8:07 AM ET

[JURIST] The UN Durban Review Conference on racism [official website] began on Monday with the UN Secretary-General Ban Ki-moon [official profile; JURIST news archive] expressing concerns [press release] over the decision by the US and several other countries to boycott the summit. The US, along with Australia, Canada, Germany, Israel, Italy, Netherlands, and New Zealand, decided to boycott to conference due the draft declaration's position on Israel and the Middle East. Additionally, the selection of Iranian president Mahmoud Ahmadinejad [official profile; JURIST news archive] as a speaker at the conference has led to protests [NYT report] from the Israeli government. Ban defended the draft declaration, saying:

The document before us is carefully balanced. It addresses key issues. It sets the stage for concrete action in a global campaign for justice for victims of racism worldwide. I deeply regret that some have chosen to stand aside. I hope they will not do so for long.

Like Theodore Roosevelt, among others, my allegiance and sympathies have always been with the men and women in the arena, struggling with courage and determination to win the day. It may be easier to criticize those efforts from afar, but it does not advance the universal cause. We need you.
The conference is first of its kind since 2001. Many critics viewed the 2001 conference has being anti-Israel, which undoubtedly led to the heightened concerns leading up to this year's conference.

Last month, the US initially threatened [JURIST report] to boycott [Washington Post report] the conference due to the document draft's bias against Israel. The US has refused to continue negotiations [press release] on the document that the Department of State believes "must not single out any one country or conflict, nor embrace the troubling concept of 'defamation of religion' [and] ... should not go further than the DDPA on the issue of reparations for slavery." In preparation of the conference, the UN Human Rights Council (UNHRC) [official website] passed a resolution [JURIST report] last month calling for laws against defamation of religion.





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Witness testifies about execution at ex-Khmer Rouge leader 'Duch' trial
Tere Miller-Sporrer on April 20, 2009 7:13 AM ET

[JURIST] A witness in the trial of former Khmer Rogue [BBC backgrounder] leader Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," testified Monday about his uncle's execution by Kaing and other crimes committed at the prison camp M-13. The witness, Chan Veoun, testified before the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] that while he worked at the prison he observed [AFP report] not only his uncle's execution but also saw Kaing once burn a woman's breasts and said that shackled prisoners would be left to drown in pits during the monsoon season. Kaing, who admitted responsibility [JURIST post] for the deaths of prisoners at the S-21 prison, denies everything revealed in Chan's testimony. The M-13 camp is outside the court's jurisdiction, but testimony about events there has been admitted to establish Kaing's role in the Khmer Rouge regime. In the coming week, the ECCC will hear testimony [Phnom Penh Post report] from former S-21 staff and survivors.

Kaing recently requested release to 'safe house' [JURIST report] during Cambodia genocide trial, though he lost a similar appeal [JURIST report] of his pre-trial detention in 2007. His trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during its nearly four-year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. In March, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.






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Iran president orders prosecutor to recognize rights of detained journalists
Devin Montgomery on April 19, 2009 4:48 PM ET

[JURIST] Iranian President Mahmoud Ahmadinejad [official profile; JURIST news archive] on Sunday issued an order to prosecutor Saeed Mortazavi to recognize the legal rights of detained journalists Roxana Saberi [advocacy website] and Hossein Derakhshan [personal weblog], according to a report [text] by the state-run Islamic Republic News Agency (IRNA). According to the IRNA, the letter called for Mortazavi to make sure the cases against the two were governed by the interests of justice, and that their right to legally defend themselves was recognized, but no other details were released. Saberi is an Iranian-American journalist who was sentenced [JURIST report] to eight years in prison for espionage by an Iranian court on Saturday, and Derakhshan is an Iranian-Canadian blogger who has been detained [Times report] in the country since November, also on espionage charges. Critics of Saberi's arrest and conviction maintain that her trial was a farce [AP report] and have said that the statement was motivated by politics rather than justice.

Last year, the Committee to Protect Journalists [advocacy website] reported that Iran ranked sixth in the world [report] for total number of imprisoned journalists. In the past two years, Iran has arrested several journalists and scholars on espionage charges. In 2007, Iran accused four Iranian-Americans of belonging to a US-organized spy network. Iran formally charged [JURIST report] Iranian-American scholar Dr. Haleh Esfandiari [WWC profile] for allegedly plotting "against the sovereignty of the country." Iran also charged Dr. Kian Tajbakhsh [OSI press release] and Radio Farda [media website] correspondent Parnaz Azima with allegedly engaging in an espionage conspiracy [JURIST report]. An Iranian judge said that Esfandiari and Tajbakhsh admitted to carrying out some "activities" [JURIST report], although it was unclear if their statements were tantamount to an admission of spying.






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France police arrest alleged Basque separatist leader
Devin Montgomery on April 19, 2009 3:14 PM ET

[JURIST] French police arrested Jurdan Martitegi Lizaso [El Pais backgrounder, in Spanish], the alleged leader of Spain's Basque separatist group ETA [BBC backgrounder; JURIST news archive], and two others during Saturday raids in which Spanish police also arrested six other suspected members of the group. Officials alleged that the group was planning a terrorist attack [El Pais report, in Spanish] in Spain, as part of their efforts for Basque independence, and that guns and bomb-making materials were also found during the raids. Spanish Jose Luis Rodriguez Zapatero [official profile, in Spanish] applauded the capture [press release, in Spanish] of the men, thanking French authorities for their cooperation and warning that the country would continue aggressively to seek the capture of ETA members.

In February, Spain's Supreme Court [official website, in Spanish] unanimously banned [JURIST report] the Basque separatist political groups Democracy 3 Million (D3M) and Askatasuna [orders, PDF, in Spanish] from participation in the coming March elections. In January, a Spanish court dismissed the case against Basque Regional Prime Minister Juan José Ibarretxe [official profile]. He and the two leaders of the Basque socialist party were charged [JURIST report] with illegally communicating with the banned Batasuna party [BBC backgrounder], the political wing of the ETA. In November, French authorities arrested [JURIST report] alleged former ETA leader Mikel Garikoitz Aspiazu Rubina [BBC backgrounder] near the country's border with Spain. In September, the court banned [JURIST report] the Basque Nationalist Action Party (ANV) from taking part in political activities because of its alleged ties to Batasuna.






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US must investigate Bush-era CIA interrogators: UN torture expert
Lucas Tanglen on April 19, 2009 11:16 AM ET

[JURIST] US President Barack Obama [official website] is in violation of international law for declining to prosecute Bush-era CIA agents who allegedly used torture [JURIST news archive], UN special rapporteur on torture Manfred Nowak [official profile, DOC] said in an interview [text, in German] published Friday in Austrian newspaper Der Standard [media website, in German]. Nowak said the US is bound by the UN Convention Against Torture [text], which requires prosecution in all cases in which there is evidence of torture. Nowak said there was still a possibility of trying agents in American courts, because Obama did not grant them amnesty. Nowak called for an independent investigation and compensation for torture victims.

On Thursday, Obama asserted his intention not to investigate individuals who used or authorized enhanced interrogation techniques, the same day the Department of Justice released memos [JURIST reports] outlining CIA use of those techniques. Earlier this month, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) released a final version of a report [JURIST report] calling on Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."






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First EU Kosovo trial blocked by Serbian protesters
Lucas Tanglen on April 19, 2009 10:11 AM ET

[JURIST] The government of Serbia [JURIST news archive] on Friday submitted [press release] its arguments against the legality of Kosovo's unilaterally declared independence [JURIST news archive] to the International Court of Justice (ICJ) [official website; JURIST news archive]. Serbian Minister of Foreign Affairs Vuk Jeremic [official profile] said the government, in the almost 1,000 pages it submitted in the case [materials], argues that the claim of independence violated [press release] UN Security Council Resolution 1244 [text, PDF], which reaffirms the sovereignty and territorial integrity of the Serbian state, the UN Charter [text], and the Helsinki Final Act [text, PDF]. Jeremic said Serbia is asking the court to consider the effect its holding will have on similar cases worldwide, noting that China [JURIST news archive] had, for the first time, offered its opinion to the ICJ for this case.

In March, more than 100 Serbian judges, prosecutors, and legal professionals prevented the opening [JURIST report] of the first EU-backed trial in Kosovo by protesting in front of the Mitrovica court house. In October, the UN General Assembly [official website] voted [JURIST report] to ask the ICJ for a non-binding advisory opinion on the legality of the unilaterally proclaimed independence of Kosovo. That same month, Serbian President Boris Tadic [official website] said he had not ruled out partitioning parts of Kosovo [JURIST report]. Kosovo's constitution [text] went into effect [JURIST report] in 2008 despite Serbia's argument that the charter of the breakaway province was legally void.






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Somalia parliament votes to adopt Islamic Sharia law
Andrew Gilmore on April 18, 2009 1:04 PM ET

[JURIST] The Somali parliament voted Saturday to adopt Islamic Sharia law [CFR backgrounder; JURIST news archive]. A parliamentary spokesperson said that more than 300 Somali MPs voted [AFP report] for the implementation of Sharia law as part of an attempt by Somali President Sharif Sheikh Ahmed [BBC profile] to bring stability to the failed state. Last month, Ahmed announced [JURIST report] that he would support the imposition of a moderate form of Sharia Islamic religious law, as part of a cease-fire agreement with the country's Hizb al-Islamiya and Al-Shabaab rebels. Ahmed said, however, that he would not agree [CNN report] to provisions that would prohibit girls from attending school, require women to wear headscarves, or ban music and television. According to Minister of Information Farhan Ali Mohamed, Islamic scholars and imams will be invited [AP report] to review the country's constitution to make changes to portions of the document they find to be un-Islamic.

Somalia has endured a lengthy civil war and several rounds of failed peace talks [BBC timeline] since the collapse of its last civil government in 1991. The country's transitional government is just now shifting its base [VOA report] from Djibouti to the Somali capital of Mogadishu. In December, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF; JURIST report] accusing both rebels and the government of having committed war crimes in the conflict. In January 2007, the transitional government began imposing martial law [JURIST report] over areas under the government's control.






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Iran court jails US journalist on espionage charges
Andrew Gilmore on April 18, 2009 12:17 PM ET

[JURIST] The Revolutionary Court of Iran convicted US journalist Roxana Saberi [advocacy website] of espionage earlier, sentencing her to eight years in prison, according to her lawyer Saturday. The trial, in which Saberi was accused of passing classified information to US intelligence agencies, was conducted earlier this week [JURIST report] in proceedings closed to the public [AP report], and news of her conviction [NYT report] came from press contact with Saberi's father and her lawyer, Abdolsamad Khorramshahi. Saberi was arrested [NYT report] last month after buying a bottle of wine, as alcohol consumption is banned in Iran. Initially, it appeared she would face charges for working as a freelance journalist for NPR and the BBC without Iranian press credentials, but once she was in custody the Iranian government charged her with espionage [AP report]. US officials, including Secretary of State Hillary Rodham Clinton [official profile], have called for Saberi to be released [NYT report]. Clinton expressed disappointment [press release] Saturday with the court's decision. Under Iranian law, espionage is punishable by execution.

Last year, the Committee to Protect Journalists [advocacy website] reported that Iran ranked sixth in the world [report] for total number of imprisoned journalists. In the past two years, Iran has arrested several journalists and scholars on espionage charges. In 2007, Iran accused four Iranian-Americans of belonging to a US-organized spy network. Iran formally charged [JURIST report] Iranian-American scholar Dr. Haleh Esfandiari [WWC profile] for allegedly plotting "against the sovereignty of the country." Iran also charged Dr. Kian Tajbakhsh [OSI press release] and Radio Farda [media website] correspondent Parnaz Azima with allegedly engaging in an espionage conspiracy [JURIST report]. An Iranian judge said that Esfandiari and Tajbakhsh admitted to carrying out some "activities" [JURIST report], although it was unclear if their statements were tantamount to an admission of spying.






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DC Circuit halts offshore drilling programs
Steve Czajkowski on April 18, 2009 10:55 AM ET

[JURIST] A three judge panel of the US Court of Appeals for the DC Circuit [official website] vacated [opinion, PDF] Friday the Bush-era program [MMS backgrounder] for leasing of land for oil and gas drilling on the US Outer Continental Shelf (OCS) along the Alaskan coast. The court held that the Department of Interior (DOI) [official website] had not carried out an environmental sensitivity study in accordance with the Outer Continental Shelf Lands Act (OCSLA) [text, PDF; MMS backgrounder] when it ranked the sensitivity of various program areas in the Beaufort, Bering, and Chukchi seas only in terms of the physical characteristics of the shoreline of those areas. In its opinion, the court disagreed with the DOI's reliance on the Environmental Sensitivity Index [NOAA materials], developed by the National Oceanic and Atmospheric Administration (NOAA) [official website], which ranks the sensitivity of different shoreline areas to oil spills:

Section 18(a)(2)(G) [of the OSCLA] states clearly that an agency must assess the environmental sensitivity of “different areas of the outer Continental Shelf” in order to make its determination of when and where to explore and develop additional areas for oil. Based on this language alone, Interior’s use of the NOAA study runs afoul of this provision because it assesses only the effects of oil spills on shorelines. Interior provides no explanation for how the environmental sensitivity of coastal shoreline areas can serve as a substitute for the environmental sensitivity of OCS areas, when the coastline and proposed leasing areas are so distant from each other. This interpretation runs directly counter to the statutory language.
The court ordered the DOI to re-assess the environmental impact of the proposed leasing program before moving forward. In response to the ruling the American Petroleum Institute (API) [official website], which had joined the litigation as an intervenor advocating the lease program, said, "it would be a disservice to all Americans - and a devastating blow to the economy - if this decision were to delay further the development of vital oil and natural gas resources."

The ruling follows plans [JURIST report] by the Obama administration to reverse offshore drilling policies established by former US President George W. Bush [JURIST news archive] at the end of his presidency. The new strategy involves extending the public comment period on the proposed five-year plan for oil and gas development on the OCS by 180 days, assembling a detailed report from DOI agencies on conventional and renewable offshore energy resources, holding four regional conferences to review these findings, and expediting renewable energy rulemaking for the OCS.





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Obama administration announces restrictions on stem cell funding
Steve Czajkowski on April 18, 2009 9:27 AM ET

[JURIST] The National Institute of Health (NIH) [official website] issued proposed guidelines [text] for funding human embryonic stem cell [NIH backgrounder; JURIST news archive] research Friday, which limits funding to embryos that were created to be used in fertility clinics but were no longer needed and would have been discarded. Additionally, the donor must have consented to giving the embryos for research purposes. The guidelines were issued in accordance with the executive order [text; JURIST report] issued by US President Barack Obama [official website] in March, which removed the Bush administration's restrictions on federal funding for research on stem cells. The guidelines also state that stem cells cannot be used for certain research techniques involving animals and cannot be obtained from somatic cell nuclear transfer, or cloning, and from embryos specifically created for research. According to the Acting Director of the NIH, Dr. Raynard Kington [official profile], there may be up to 700 stem cell lines that could be researched [CNN report] compared to about 88 allowed under the previous regulations.

The new guidelines reverse previous rules that limited government funding to only stem cell lines that were in existence as of August 2001. Despite pressure from the scientific community the previous administration refused similar changes to funding guidelines. In 2007, then-president George W. Bush vetoed [JURIST report] the Stem Cell Research Enhancement Act of 2007 [S5 materials], which was intended to relax funding restrictions on embryonic stem cell research. The administration rejected the bill saying it would compel taxpayers to support the destruction of human embryos. In 2006, Bush vetoed a previous version [JURIST report] of the Stem Cell Research Enhancement Act, which was passed by the Senate to remove restrictions on embryonic stem cell research, saying he would not provide federal funding for stem cell research because many consider the destruction of embryos to be murder.






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EPA announces proposed findings for regulation of greenhouse gases
Andrew Gilmore on April 17, 2009 2:59 PM ET

[JURIST] The US Environmental Protection Agency (EPA) [official website] announced Friday a proposed finding [report, PDF] that atmospheric greenhouse gases endanger public health and welfare, setting the stage for government regulation of the harmful gases for the first time. Announcement of the proposed finding, which was submitted [JURIST report] to the Office of Management and Budget (OMB) [official website] for final review last month, begins a 60-day public comment period prior to the promulgation of proposed rules to regulate greenhouse gas emissions. The final ruling reached by the EPA with the approval of President Barack Obama [official profile] is expected to lead to restrictions of manufacturing and vehicle emissions under the Clean Air Act [text, PDF]. EPA Administrator Lisa Jackson [official profile] said at the announcement [press release] of the proposed findings that the document "confirms that greenhouse gas pollution is a serious problem now and for future generations," and that "it follows President Obama’s call for a low carbon economy and strong leadership in Congress on clean energy and climate legislation[.]" The summary of the proposed finding gives specific reference to the gases that will be subject to future regulation:

Today the Administrator is proposing to find that greenhouse gases in the atmosphere endanger the public health and welfare of current and future generations. Concentrations of greenhouse gases are at unprecedented levels compared to the recent and distant past. These high atmospheric levels are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes. The effects of climate change observed to date and projected to occur in the future – including but not limited to the increased likelihood of more frequent and intense heat waves, more wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems – are effects on public health and welfare within the meaning of the Clean Air Act. In light of the likelihood that greenhouse gases cause these effects, and the magnitude of the effects that are occurring and are very likely to occur in the future, the Administrator proposes to find that atmospheric concentrations of greenhouse gases endanger public health and welfare within the meaning of Section 202(a) of the Clean Air Act. She proposes to make this finding specifically with respect to six greenhouse gases that together constitute the root of the climate change problem: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.

The Administrator is also proposing to find that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles and new motor vehicle engines are contributing to this mix of greenhouse gases in the atmosphere. Thus, she proposes to find that the emissions of these substances from new motor vehicles and new motor vehicle engines are contributing to air pollution which is endangering public health and welfare under section 202(a) of the Clean Air Act.
The regulation of greenhouse gases under the Clean Air Act has been the subject of considerable controversy and litigation in recent years. Last 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.





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UK court convicts Tamil leader of aiding Sri Lanka separatists
Adrienne Lester on April 17, 2009 2:17 PM ET

[JURIST] A jury for a UK crown court convicted Arunachalam Chrishanthakumar Friday of supplying bomb-making materials to the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] a Sri Lankan separatist group. Chrishanthakumar was also convicted [BBC report] of receiving documents for the purpose of terrorism, but the jury failed to reach a verdict on charges of receiving military equipment, receiving money, and belonging to the LTTE. The suspicions regarding Chrishanthakumar began in 2004 when UK police discovered he was sending computers, circuit boards, and other electronics to Sri Lanka [JURIST news archive]. But he was not arrested [BBC report] until 2007 when police searched his home and found evidence of his involvement with the LTTE. Chrishanthakumar maintained the electronics were sent to Sri Lanka to assist farmers.

The LTTE argue that the government of Sri Lanka must establish an independent ethnic state for Tamils within the current boundaries of Sri Lanka, a demand the government has rejected since the Tigers began an open rebellion in the 1970s. Additionally, the Sri Lankan government has refused to hold cease-fire negotiations with the LTTE, as it believes it is close to ending the country's 25 year civil war [BBC timeline] that has resulted in over 70,000 deaths. Human rights groups have accused both the Sri Lankan government and the LTTE of committing human rights violations [JURIST report] by attacking civilians. In 2000, the New Terrorism Act [text] banned the LTTE in the UK.






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Mumbai terror attack defense lawyer alleges client was tortured
Tere Miller-Sporrer on April 17, 2009 2:08 PM ET

[JURIST] The lawyer for the accused gunman on trial in India for the November 2008 Mumbai terrorist attacks [BBC backgrounder; JURIST news archive] moved Friday to suppress his client's confession, arguing it was the product of torture. The lawyer also argued that the trial of Mohammed Ajmal Kasab [NDTV backgrounder] should be moved to juvenile court because Kasab was 17 at the time of his arrest. Judge M.L. Tahiliyani rejected [Times of India report] the petition for removal to juvenile court because Kasab asserted at the time of his arrest that he was 21 and because he does not appear to be 17. The court will announce its ruling [Reuters report] on the admissibility of the confession on Saturday.

Kasab's first defense lawyer was removed [JURIST report] earlier this week as she was also reportedly representing a victim of the attacks in a civil suit. Kasab first appeared [JURIST report] before Tahiliyani in March via video. In February, Pakistan officials conceded [JURIST report] that the attacks were partially planned in their country and that the perpetrators traveled by ship [NYT report] from southern Pakistan to Mumbai. An international tribunal to prosecute persons involved has been proposed [JURIST op-ed] in order to avoid further complications between Pakistan and India. The attacks in Mumbai, which claimed at least 170 lives, were carried out at ten locations across the city including the landmark Taj Mahal Palace hotel.






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UK to restrict use of surveillance law for minor infractions
Amelia Mathias on April 17, 2009 1:41 PM ET

[JURIST] The ability of councils in the UK to monitor citizens for minor infractions will be curtailed [press release], according to Home Secretary Jacqui Smith [official profile] on Friday. The Regulation of Investigatory Powers Act (RIPA) [text], passed in 2000, gives broad powers of surveillance to councils, with reasonable suspicion, to watch with closed-circuit television and read the e-mails of those suspected of crimes. Though the legislation was originally meant to target terrorism and serious crime, RIPA does not rule out the use of its powers for tackling lesser crimes such as littering and illegal trash-dumping by otherwise law-abiding citizens. The Conservative Party and Liberal Democrats [party websites] both favor restricting the use of RIPA. The Home Office [official website] is considering redefining what groups are permitted to use the RIPA legislation, such as restricting its use to magistrate-sanctioned searches only, and has begun an investigation on the subject [Times report], seeking public input [press release].

The reevaluation of RIPA comes after condemnation of other British surveillance measures. Earlier this week, the European Commission informed the UK that it is failing to follow European Union Internet privacy laws [JURIST report]. In February, the House of Lords released a report [JURIST report] holding that privacy interests of citizens should be balanced with concerns for security and safety and warning that the widespread use of surveillance cameras infringes on privacy. In February 2008, the Home Office said that the government has no plans [JURIST report] to create a compulsory DNA database for British citizens. Rights groups have criticized the National DNA Database for retaining information on criminal suspects after they are found innocent, and for displaying a racial bias [JURIST reports] against minorities. In September 2007, UK rights group Liberty [advocacy website] released a report [press release; JURIST report] arguing that the government was endangering the privacy of law-abiding Britons by increasingly using mass surveillance to profile people rather than targeting individual criminal suspects using intelligence-led policing.






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Second Circuit rules Israeli ex-security chief accused in bombing cannot be sued in US
Tere Miller-Sporrer on April 17, 2009 11:57 AM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Thursday that former Israeli security chief Avraham Dichter cannot be sued in the US because he is immune under traditional common law. The decision affirms the ruling [opinion, PDF] of the US District Court for the Southern District of New York [official website]. Dichter faced suit [complaint, PDF] by survivors of a 2002 Israeli bombing, the target of which was alleged Hamas leader Saleh Mustafah Shehadeh [advocacy profile]. Shehadeh was killed along with his wife and nine children when a bomb detonated in a densely populated section of Gaza City. Human rights groups have widely called the attack a war crime.

The Second Circuit's ruling came as Israel rejected [JURIST report] the UN Human Rights Council's proposed investigation into possible war crimes committed during the most recent Gaza conflict. The proposed investigation is the result of a report [text, PDF; JURIST report] authored by UN Special Rapporteur Richard Falk that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Israel and the US are united in their condemnation [JURIST report] of the report's alleged lack of objectivity.






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First Circuit rules against webcasting proceedings in copyright suit
Christian Ehret on April 17, 2009 9:14 AM ET

[JURIST] The US Court of Appeals for the First Circuit [official website] ruled [opinion text] Thursday that oral arguments in a copyright infringement case could not be broadcast over the Internet. Respondent Joel Tenenbaum, one of many to be sued for copyright infringement, made a motion in December in the district court to allow Courtroom View Network [corporate website] to "webcast a non-evidentiary motions hearing" originally scheduled for January 22, 2009. The district court granted the motion due to "keen public interest in the litigation." The petitioners, including Warner Brothers, Sony BMG [corporate websites], and other recording companies, petitioned for a writ of mandamus against the district court's ruling. The companies relied on Rule 83.3 of the Local Rules of the US District Court for the District of Massachusetts [text, PDF], which provides that "[e]xcept as specifically provided in these rules or by order of the court, no person shall ... make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court." Additionally, petitioners argued that the US Judicial Conference [official website] advocated a ban on recording devices in federal courtrooms except where needed to preserve trial evidence. The court ruled on the discretion provided by Local Rule 83.3 by stating that a broad interpretation would be limitless. The standard of review that the appellate court applied considered abuse of discretion with "a special degree of deference." The court determined:

Here, we think that the limits of the district judge's discretion were exceeded; her interpretation of Local Rule 83.3 is unprecedented and, in our view, palpably incorrect.

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted. Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts.
The court maintained that the broadcasting of court proceedings was still allowable in criminal cases and in other limited instances.

The underlying lawsuit in this case is one of many suits brought alleging copyright infringement for digital file-sharing. In December, the Recording Industry Association of America (RIAA) [website] said that, although it would still continue to pursue outstanding cases, it would discontinue suing alleged file-sharers [JURIST report] and instead seek cooperation with internet service providers (ISP) to cut off access for users violating copyright law. The French Parliament recently defeated [JURIST report] legislation that would cut off internet access for those who illegally download copyrighted material.





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Obama administration pledge not to prosecute CIA interrogators draws criticsm
Brian Jackson on April 17, 2009 8:55 AM ET

[JURIST] US President Barack Obama on Thursday asserted his intention [statement] not to investigate individuals who used or authorized enhanced interrogation techniques the same day the Department of Justice (DOJ) [official website] released memos [JURIST report] outlining CIA use of these techniques. The president urged the country to look forward, rather than to the past, saying:

We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.
Obama's statement was met with criticism from several civil liberties and human rights groups. The American Civil Liberties Union (ACLU) [advocacy website] called for an investigation [press release], saying, "When crimes have been committed, the American legal system demands accountability." Human Rights Watch (HRW) [advocacy website] also urged the administration to investigate those who authorized torture [press release]. The Center for Constitutional Rights (CCR) [advocacy website] expressed "deepest disappointments" [press release] in the administration's decision. The chairmen of both the Senate Judiciary Committee and the House Judiciary Committee [official websites] released statements [Senate statement; House statement] urging the administration to investigate those who authorized enhanced interrogation techniques.

Last week, House Judiciary Committee Chairman John Conyers, Jr. (D-MI) released a final version of a report [JURIST report] calling on Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."





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Families of Virginia Tech shooting victims file lawsuit
Bhargav Katikaneni on April 17, 2009 8:08 AM ET

[JURIST] Two families whose children were killed in the 2007 Virginia Tech school shooting [Washington Post backgrounder] filed separate lawsuits [Pryde complaint, PDF; Peterson complaint, PDF] Thursday in the Circuit Court of Fairfax County, asking for $10 million in compensatory damages. The parents of Julie Pryde and Erin Peterson [Virginia Tech profiles], who were shot and killed by fellow student Seung-Hoi Cho [BBC profile], filed suit against the Commonwealth of Virginia, Virginia Tech [university website], the university's Cook Counseling Center [website], top university officials, and local counseling center New River Valley Community Services [website] for negligence resulting the death of the two victims. The complaint alleges that Virginia Tech, and in the alternative, the Commonwealth of Virginia, were "deliberately indifferent" to the safety needs of the students in failing to have proper procedures in place to safeguard students. It further alleges that top university officials were negligent in failing to "issue a full, fair, and accurate warning" about the threat to students from Cho and that the psychiatric institutions did not follow procedures to confine him to a mental institution despite multiple warning signs. The suit was filed on the two-year anniversary of the shooting, the deadline under the statute of limitations.

The Virginia Tech shooting left 33 people dead and wounded 25 in the deadliest school shooting in US history. In June, a Virginia judge approved [JURIST report] an $11 million settlement with the families of 24 people who had been killed in the shooting. The settlement awarded each family $100,000 plus medical expenses and provides for meetings with Virginia Governor Tim Kaine and university and police officials. The Pryde and Peterson families did not participate in the settlement agreement.






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First Iraq insurgent tried in US federal court sentenced to 25 years in prison
Brian Jackson on April 17, 2009 8:03 AM ET

[JURIST] Iraqi insurgent Wesam al Delaema was sentenced to 25 years in prison [DOJ press release] Thursday for conspiracy to murder US nationals outside the US. Al Delaema, who was charged [indictment, PDF] with the crime in 2005, is the first Iraqi insurgent to be tried in a US federal court. Al Delaema's final sentence will be determined by a Dutch court, and he will ultimately serve his term in a Dutch prison. Assistant Attorney General for National Security David Kris, commenting on the verdict, said, "The sentence imposed today should serve notice that the United States will use all available tools to pursue those who would plot attacks against our men and women serving in Iraq."

Al Delaema pleaded guilty [JURIST report] to conspiracy to commit murder in February, reversing his earlier plea of not guilty [JURIST report], entered in 2007. The Dutch Ministry of Justice extradited [JURIST report] al Delaema to the US in 2007 after authorization [JURIST report] from a Dutch court based on US promises to try al Delaema in a federal court rather than by a military commission.






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Sweden court issues guilty verdict in file-sharing case
Christian Ehret on April 17, 2009 7:34 AM ET

[JURIST] A Swedish court on Friday found four defendants guilty of abetting copyright infringement [judgment, PDF, in Swedish; press release, in Swedish] for hosting the file-sharing website The Pirate Bay [website] and sentenced them to one year in prison. The popular website is hosted by defendants Peter Sunde, Gottfrid Svartholm Warg, Fredrik Neij, and Carl Lundstrom and uses Bittorrent technology [backgrounder] to allow the distribution of files without ever actually hosting the copyrighted works on their own servers. The Stockholm district court found that the defendants intentionally and sufficiently promoted copyright infringement by being aware that the violations were taking place, providing sophisticated search functions for users, and allowing easy upload and storage of the torrent data files that facilitated the infringement. The sentence was calculated by taking into account the organization of the website, the extensive amount of copyrighted work available on it, and the commercial nature of the site. The court estimated damages at around 30 million crowns (3.56 million USD) despite much higher estimates by various copyright holders including Warner Brothers, MGM, 20th Century Fox Films, Sony BMG [corporate websites], and others. The Pirate Bay has posted complaints [text] from copyright holders and maintains that "[n]o action (except ridiculing the senders) has been taken by us because of these [complaints]." The website goes on to state defiantly that no torrents have ever been removed by request and never will be. The Pirate Bay attempted to use a European Union (EU) directive on electronic commerce [text] in their defense, claiming that they were a "mere conduit" for information passed by their users and therefore not liable. The prosecution pointed out that the directive was aimed at service providers, not private websites.

Sweden's National Museum of Science and Technology [website] is now displaying a server from The Pirate Bay [Engadget report] that was confiscated last year. Earlier this month, the Swedish Intellectual Property Rights Enforcement Directive (IPRED) went into effect, resulting in a 33 percent decrease [BBC report] in Internet traffic. The law was based on similar legislation [text, PDF] passed by the EU and allows copyright holders to force internet service providers into providing information about users. Before the Swedish law was passed, copyright holders had no recourse [Wired report] in the country aside from reporting the alleged infringement to the police who were often reluctant to pursue the complaints. The French Parliament recently defeated [JURIST report] legislation that would cut off internet access for those who illegally download copyrighted material.






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Indonesia high court overturns Suharto defamation verdict against TIME
Andrew Gilmore on April 16, 2009 5:29 PM ET

[JURIST] The Indonesian Supreme Court overturned Thursday a 2007 decision [JURIST report] against TIME magazine [media website] awarding the late former Indonesian president Haji Mohammad Suharto [BBC profile; JURIST news archive] $106 million in damages in Suharto's defamation suit against the publication. Suharto sued TIME over a 1999 article [text] that said Suharto had hidden billions of dollars in foreign banks. The Supreme Court overturned the 2007 ruling, saying [AFP report] that the 1999 article was not against the law and that no press ethics laws were violated.

Suharto, who ruled Indonesia from 1967 to 1998, died [JURIST report] in late January 2008. In March 2008, an Indonesian court cleared Suharto [JURIST report] of charges brought by government lawyers in a civil corruption case [JURIST report] against his estate in connection to allegations that he embezzled $440 million from the Yayasan Supersemar [official website], a state-funded scholarship fund, between 1974 and 1998. Earlier criminal corruption charges were dropped in 2006 because Suharto was rendered unable to speak or write [JURIST reports] as a result of several strokes.






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DOJ releases secret CIA interrogation memos
Jaclyn Belczyk on April 16, 2009 4:47 PM ET

[JURIST] The US Department of Justice (DOJ) [official website] on Thursday released four top secret memos [press release] from the Office of Legal Counsel (OLC) [official website] outlining controversial CIA interrogation techniques and their legal rationale. The previously undisclosed memos [text, PDF; text, PDF; text, PDF; text, PDF] were released with redactions in response to a Freedom of Information Act (FOIA) [text] lawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] during the Bush administration. The ACLU has also called for an independent investigator [press release] to probe allegations of torture during the Bush administration, but President Barack Obama said [statement] that, "[i]n releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution." Attorney General Eric Holder [official profile; JURIST news archive] said "[t]he President has halted the use of the interrogation techniques described in these opinions, and this administration has made clear from day one that it will not condone torture." Former CIA director Michael Hayden criticized [AP report] the Obama administration's decision to release the memos, calling it a threat to national security.

Last week, US House Judiciary Committee [official website] Chairman John Conyers, Jr. (D-MI) [official website] released a final version of a report [text; PDF; JURIST report] reiterating his allegations that the Bush administration engaged in numerous abuses during the "war on terror" and calling on Holder to appoint a special prosecutor to determine whether any criminal laws were violated. Human rights groups have also called for the prosecution [AI report] of senior Bush administration officials for their use of enhanced interrogation techniques. Such calls gained traction in late December, when the Senate Armed Services Committee [official website] alleged [report] that top Bush officials, including former defense secretary Donald Rumsfeld [JURIST news archive], "bore major responsibility" for the abuses committed by US interrogators in military detention centers.






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New York governor announces same-sex marriage legislation
Andrew Gilmore on April 16, 2009 4:14 PM ET

[JURIST] New York Governor David Paterson [official profile] announced Thursday the introduction of legislation that would legalize [press release] same-sex marriage [JURIST news archive] in the state. If passed, the legislation would amend the state's Domestic Relations Law [text] to give same-sex couples the opportunity to enter into civil marriages, which would give them the same rights under New York law as heterosexual married couples. In announcing the proposed legislation, Paterson said:

Marriage equality is about basic civil rights and personal freedom. ... Too many individuals face legal discrimination every single day. Too many loving families do not receive the legal recognition they deserve. Anyone who has ever faced intolerance of any kind knows the solemn importance of protecting the rights of all people. That is why we stand together today to embrace civil rights for every New Yorker. We stand together today for marriage equality in the State of New York.
Paterson compared the struggle [NYT report] for same-sex marriage rights to the American civil rights movement, calling for an end to a regime of "systematic discrimination" against same-sex couples.

In February, a New York court ruled [JURIST report] that the surviving partner of a same-sex marriage performed in Canada was entitled to inherit the estate of the deceased spouse, basing the ruling in New York's recognition of legal same-sex marriages performed outside the state. In May 2008, Paterson issued a mandate [JURIST report], requiring that any and all out-of-state same-sex marriages be recognized as legal within the state of New York. This mandate supported an intermediate appellate court ruling in Martinez v. County of Monroe [opinion, PDF; JURIST report], holding that legal same-sex marriages performed outside the state are entitled to recognition in New York. In September of that year, the New York Supreme Court [official website] dismissed [decision and order; JURIST report] a challenge to Paterson's directive.





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Spain AG not recommending action against US officials who backed Guantanamo
Jay Carmella on April 16, 2009 1:28 PM ET

[JURIST] Spanish Attorney General Candido Conde Pumpido [official profile, in Spanish] announced Thursday that he will not recommend that the Spanish government seek action against members of the Bush administration behind the establishment of the Guantanamo Bay [JURIST news archive] detention center. Spanish judge Baltasar Garzon [BBC profile; JURIST news archive] had asked prosecutors to examine [JURIST report] the possibility of bringing a lawsuit against the US lawyers reportedly responsible for the detention center under the theory of universal jurisdiction [AI backgrounder]. Pumpido concluded that the individuals named by Garzon did not commit any acts of torture [AFP report], and thus they should not be the targets of an investigation. Pumpido also expressed concern over the impact that such a trial would have on the Spanish courts.

Garzon, famed for indicting Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives], is well known for his involvement in high-profile investigations of terror and human rights cases under the universal jurisdiction principle. In February, Spain announced that it is considering legislation to limit [JURIST report] the the scope of universal jurisdiction. If adopted, the Reform of the Judiciary Act would limit the court's jurisdiction over war crimes and genocide charges to those cases that have a substantial link to the country or its citizens. It would require that the suspects be arrested in Spain, and that the crimes be committed against Spaniards or have some historical link to the country.






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UN rights chief urges Fiji president to reinstate judiciary
Andrew Morgan on April 16, 2009 1:18 PM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Wednesday urged [press release] Fijian President Ratu Josefa Iloilo [official profile] to reinstate dismissed judges and lift media restrictions imposed after Iloilo suspended [JURIST report] the country's constitution. Pillay said that the 5-year interim government declared by Iloilo and the reappointment [JURIST report] of Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile] were improper uses of emergency power, which "should only be used to deal with a dire threat to the security of the nation, not to undermine the fundamental checks and balances of good government." Pillay cautioned:

[t]he long term damage of undermining such fundamental institutions as the judiciary and the media cannot be underestimated ... I strongly urge a return to the rule of law, to the reinstatement of the judiciary and an end to media censorship.
Earlier this week, members of Fiji's Law Society [organization website] called for deposed judges to remain in office [JURIST report] and resist the current military regime's attempts to oust them. Turmoil has built since the Court of Appeal of Fiji declared [JURIST report] that the appointment of the military government following a 2006 coup d'etat [JURIST report] which ousted Prime Minister Laisenia Qarase [BBC profile] was unconstitutional. Concerns about the constitutional suspension have also been expressed [statement text] by UN Secretary-General Ban Ki-moon and US State Department [official website] spokesperson Richard Aker, who said that it was a step backwards [press release] for the country, and called on Fiji to continue to recognize rights outlined in the suspended constitution.





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Pakistan urged to overturn provincial Sharia law ordinance
Benjamin Hackman on April 16, 2009 12:44 PM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the Pakistani government to reverse [press release] a recently signed ordinance [JURIST report] that imposes Islamic Sharia law [CFR backgrounder; JURIST news archive] in the North West Frontier Province (NWFP) area of Swat, saying it poses a "grave threat" to human rights by putting the Taliban [JURIST news archive] and its affiliates in administrative control. HRW said that the Nizam-e-Adl Regulation 2009 [text] creates a framework to unconstitutionally empower the Taliban by "formal acquiescence" of control over the region. The statement accused the Taliban of violating international human rights standards as well as the Pakistani constitution [text] and called for details of a February 15 agreement [JURIST report] between the Taliban and Pakistan to be made public. That peace deal was widely considered to require the Taliban to surrender its arms, but a Taliban spokesman on Wednesday called disarmament "out of the question" [Reuters report]. The ordinance will create a separate justice system [BBC report] for the Swat region, and HRW urged the government to protect women's rights as well as the rights of dissenters.

Pakistan President Asif Ali Zardari [BBC profile] signed the ordinance Monday after Pakistan's National Assembly [official website] voted to recommend [Dawn report] the measure. The agreement for the implementation of Sharia law in Swat has been seen by many as a controversial concession [Dawn report] by the Pakistani government to Islamic militant groups. A May 2008 agreement [Guardian report; JURIST report] to establish Sharia law in the Swat area, which collapsed amid ongoing violence between Islamic groups and the Pakistani military, provided that militants would halt suicide attacks and hand over foreign fighters under local protection. In exchange, an Islamic justice system would have been created to operate in parallel with the secular system, and established Pakistani courts would have been advised by Islamic scholars.






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Holder stresses rule of law in national security speech
Andrew Morgan on April 16, 2009 12:12 PM ET

[JURIST] US Attorney General Eric Holder [official profile; JURIST news archive] said Wednesday that America needs to renew its commitment to the rule of law [prepared remarks] in fighting international terrorism and protecting national security. In an address to the West Point Center for the Rule of Law [official website], Holder praised lawyers from the Judge Advocate General Corp defending detainees at Guantanamo Bay [JURIST news archive] for not "surrender[ing] faithful obedience to the law to the circumstances of the time" despite risk to their careers. Holder emphasized the importance of the rule of law in national security decisions:

[A]s we face a world filled with danger, ... we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes. ... [T]here are those who equate a stated intention to apply the rule of law in a national security context with softness or naïveté. I could not disagree more. Underneath the lofty pronouncements made by leaders must lay real principles that will unerringly chart our course as policymakers – principles that we will hold dear not just when we face the easy decisions, but also when we face the hard ones.
Recognizing the need for some national security-related activities to be conducted in secret, Holder said that "a need to act behind closed doors does not grant a license to pursue policies, and to take actions, that cannot withstand the disinfecting power of sunlight."

Holder's comments come at a time of increasing pressure to determine the legality of many Bush-era security policies. Earlier this month, US House Judiciary Committee [official website] Chairman John Conyers, Jr. (D-MI) [official website] released a report [text; PDF; JURIST report] alleging that the Bush administration engaged in numerous abuses during the "war on terror" and called on Holder to appoint a special prosecutor to determine whether any criminal laws were violated. Human rights groups have called for the prosecution [AI report] of senior Bush administration officials for their use of enhanced interrogation techniques. Such calls gained traction in late December, when the Senate Armed Services Committee [official website] alleged [report; JURIST report] that top Bush officials, including former defense secretary Donald Rumsfeld [JURIST news archive], "bore major responsibility" for the abuses committed by US interrogators in military detention centers.





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DOJ limits NSA surveillance after finding privacy invasions
Jay Carmella on April 16, 2009 11:52 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced Wednesday that it has limited electronic surveillance conducted by the National Security Agency (NSA) [official website]. The annoucement [AP report] comes after the NSA was found to have exceeded its legal authority [NYT report] in reviewing private communication between US citizens. The DOJ said that it has taken "comprehensive steps" toward eliminating the problem, and that the information coming from the surveillance is still important. After the DOJ was satisfied that the issues were resolved, US Attorney General Eric Holder [official profile; JURIST news archive] sought to extend the program with the national security court. Chairwoman of the Senate Select Intelligence on Committee [official website] Diane Feinstein (D-CA) [official profile] said on Thursday that the committee is concerned [NYT report] with the allegations, and will hold a hearing to review the matter within the next month.

Electronic surveillance by the NSA has been criticized over the last several years. In February, the US Court of Appeals for the Ninth Circuit [official website] denied [JURIST report] an appeal by the DOJ seeking to stop a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal wiretap by the NSA. Last October, the Senate Select Committee on Intelligence also investigated [JURIST report] allegations made by two members of the US military that the NSA eavesdropped on the personal conversations of members of the military and humanitarian aid workers stationed in the Middle East. In 2006, it was revealed that the NSA [JURIST report] was collecting phone records from major telephone companies to study the calling patterns of millions of Americans in an effort to detect terrorist activity.






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Washington passes bill expanding rights of same-sex couples
Steve Czajkowski on April 16, 2009 11:05 AM ET

[JURIST] The Washington State House of Representatives [official website] on Wednesday voted 62-35 to approve a bill [text, PDF; materials] granting same-sex couples the same rights and benefits of married couples in the state. The law effectively construes statutory gender specific terms such as "husband" and "wife" to be gender neutral, making them applicable to individuals in same-sex domestic partnerships, but stops short of recognizing the partnerships as marriages. The bill grants [Seattle Times report] same-sex couples rights equal to that of married couples in areas such as labor and employment, legal process, insurance rights, and others. It was passed by the Washington State Senate [official website] in March by a vote of 30-18. Despite opposition that criticizes [Spokesman Review report] the law as being detrimental to marriage, Washington Governor Chris Gregoire [official website] has said she will sign the bill into law.

In January 2006, Gregoire signed [JURIST report] into law a gay civil rights act [HB 2661 text, PDF] that expanded the Washington Civil Rights Act to protect gays and lesbians from discrimination in housing, lending, and employment. That law made Washington the 17th state in the nation to have an anti-discrimination law that covered sexual orientation. In April 2007, Gregoire signed domestic partnership legislation [text, PDF; JURIST report] that guaranteed gay and lesbian couples some of the legal rights that previously were afforded only to husband and wife including hospital visitation rights, inheritance rights, and the ability to authorize medical decisions for their partner. The present law is seen b some as completing the grant of rights that the previous legislation had begun.






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Israel rejects UN Gaza war crimes investigation
Steve Czajkowski on April 16, 2009 10:01 AM ET

[JURIST] Israel will not comply with a UN Human Rights Council (UNHRC) [official website] investigation into possible war crimes that were committed during recent fighting in the Gaza Strip [BBC backgrounder], according to Wednesday statements by Israeli government officials. The probe was originally approved by the UNHRC in January, which recently appointed [press release; JURIST report] South African judge Richard Goldstone to head the four member delegation in its fact-finding mission. An unidentified official said that a letter was sent [AP report] to Goldstone last week, stating that Israel would not comply with the investigation because it doubted the mission's objectivity. Israel also argued that investigation did not focus enough [Haaretz report] on Hamas hostilities prior to the Israeli incursion into the Gaza Strip. Hamas has said that it will cooperate with the investigation.

The investigation drew criticism [JURIST report] from the Israeli Ministry of Foreign Affairs [official website] earlier this month. The probe was a result of the report [text, PDF; JURIST report] authored by UN Special Rapporteur Richard Falk [appointment release] that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US condemned [JURIST report] the report as biased.






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Venezuela to renew extradition request for anti-Castro militant
Ximena Marinero on April 16, 2009 8:37 AM ET

[JURIST] Venezuela will renew calls for the US to extradite anti-Castro Cuban exile and Venezuelan national Luis Posada Carriles [BBC profile; JURIST news archive] following a new indictment [court materials; WSJ report] ordering Posada to stand trial in Texas, Venezuelan lawyer Jose Pertierra said [AP report] Wednesday. Posada, who is wanted by both Venezuela and Cuba for his alleged involvement in the 1976 bombing of a Cuban airline [ASN backgrounder], was charged on April 8 in the US District Court for the Western District of Texas [official website] with 11 counts of perjury stemming from immigration interviews conducted in 2005. Venezuelan officials hope that the trial will reverse a prior US ruling refusing to extradite Posada to Venezuela or Cuba on concerns that he would face torture, with expectations that the Obama administration will be more receptive to extradition requests [JURIST reports]. Pertierra said that the Venezuelan Foreign Ministry [official website, in Spanish] will likely make its renewed extradition request before the Summit of the Americas begins Friday.

Venezuela and Cuba contend that the US is legally obligated to extradite Posada because it is bound by international treaties, including the International Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation [texts]. Posada is also suspected of involvement with narcoterrorism and a series of Cuban bombings in 1997 [Washington Post report]. Posada's immigration fraud charges were dismissed in 2007, but that decision was reversed by a 2008 ruling [JURIST reports] reinstating the indictment and ordering a trial. The trial, based on the superseding 11-count indictment, is set for August 10.






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Third US Army sergeant convicted of killing Iraqi detainees
Ximena Marinero on April 16, 2009 7:30 AM ET

[JURIST] US Army Master Sgt. John Hatley [JURIST news archive] was convicted of murder and conspiracy in court-martial proceedings Wednesday for the killing of four unarmed Iraqi prisoners [NYT report] in 2007 and sentenced to life with the possibility of parole. Hatley was acquitted of obstruction of justice and also of murder for the separate death of a seriously wounded Iraqi detainee during early January 2007. Hatley, along with Sgt. Michael Leahy, Jr. and Sgt. 1st Class John Mayo, was charged [JURIST report] in September with premeditated murder, conspiracy, and obstruction of justice. He had requested six more months to complete his 20 years of service in the armed forces, but was denied.

Hatley is the third of seven soldiers allegedly involved in the incident to be tried and found guilty of charges. Last month, Mayo was convicted and sentenced [JURIST report] to 35 years in prison on charges of premeditated murder and conspiracy to commit premeditated murder after he pleaded guilty at his court-martial proceedings. He also agreed to testify against Hatley [AP report]. Leahy was convicted [JURIST report] in February and sentenced to life in prison with the possibility of parole. Staff Sgt. Jess Cunningham, originally an alleged co-conspirator against whom charges were dropped, testified against Leahy [JURIST report] at his trial. Fellow unit members Spc. Belmor Ramon and Spc. Steven Ribordy pleaded guilty last year to conspiracy and accessory to murder [JURIST reports], respectively, in connection with the incident.






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India judge removes Mumbai terror attack defense lawyer
Lucas Tanglen on April 15, 2009 3:38 PM ET

[JURIST] A judge in India [JURIST news archive] on Wednesday removed the defense lawyer from the trial of an accused gunman in the November 2008 Mumbai terror attacks [BBC backgrounder; JURIST news archive], citing a conflict of interest. Judge M.L. Tahiliyani said Anjali Waghmare [Sindh Today profile] could not represent Ajmal Kasab in the special court trial because she had agreed to represent a victim [Times of India report] of the attacks in a civil case. Waghmare denied [Telegraph report] any "professional misconduct," saying that she had met with a victim but had not committed to representing him. Kasab, who faces 12 charges including murder and waging war against India, asked for a lawyer from his native Pakistan. Tahiliyana said Kasab's new lawyer must be from India, but that the Pakistani government could help make the selection.

Kasab first appeared before Tahiliyani last month via video. In February, Pakistan officials conceded [JURIST report] that the attacks were partially planned in their country. Pakistan also stated that the perpetrators traveled by ship [NYT report] from southern Pakistan to Mumbai, where they launched the attack from inflatable boats using outboard engines purchased in Karachi, Pakistan. One scholar suggested that an international tribunal be formed [JURIST op-ed] to prosecute persons involved in Mumbai attacks in order to avoid further complications to the already unstable relationship between Pakistan and India. The attacks in Mumbai, which claimed at least 170 lives, were carried out at ten locations across the city including the landmark Taj Mahal Palace hotel.






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Former federal prosecutor to oversee US border policy
Christian Ehret on April 15, 2009 3:30 PM ET

[JURIST] US Secretary of Homeland Security Janet Napolitano [official profile] on Wednesday appointed [press release] former federal prosecutor Alan Bersin as assistant secretary for international affairs and special representative for border affairs to oversee illegal immigration and anti-crime efforts along the country's borders. Bersin's duties will include improving relationships with the Department of Homeland Security (DHS) [official website] and international, state, and local communities, as well as leading efforts to lessen violence [press release] along the US-Mexican border to "help Mexico target illegal guns, drugs and cash." Bersin and Napolitano conducted a press conference [AP report] on a bridge over the Rio Grande connecting El Paso with Ciudad Juarez, Mexico to address concerns that have been expressed in regards to the border. Bersin rejected requests by state officials to patrol the border with military personnel by referring to the Posse Comitatus Act [text] which provides that, except where specially authorized, the Army and Air Force should not act as law enforcement. Bersin also stressed the importance of not exaggerating any potential security threats that the border may pose. Napolitano addressed the recent border efforts and Bersin's appointment:

The Department of Homeland Security has taken strong action to put the right resources in key places along the Southwest border. Thanks to additional technology and personnel along the border, we are getting better intelligence leading to drug and weapons seizures and better identification of illegal and criminal aliens.

Alan brings years of vital experience working with local, state and international partners to help us meet the challenges we face at our borders. He will lead the effort to make our borders safe while working to promote commerce and trade.
Bersin previously served as a federal prosecutor for California’s Southern District, as the Special Representative for the Southwest Border for former Attorney General Janet Reno, as the Board Chairman of the San Diego County Regional Airport Authority and as California’s Secretary of Education. He is scheduled to travel to the border communities of Del Rio, Laredo, Hidalgo, McAllen, and Brownsville to meet with local law enforcement and to discuss coordination efforts with federal, state, and local Mexican authorities.

In March, Napolitano announced a set of Southwest border initiatives [press release] to support a Mexican campaign against drug cartels. The initiatives were aimed at lessening the flow of cash and firearms from the US to Mexico, bringing more personnel to the border and to incorporate new technology at certain border locations to combat the drug trade. In September, US Customs and Border Protection [official website] informed Congress [JURIST report] that a proposed border fence [JURIST news archive] would not likely be completed.





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Guantanamo detainee alleges continued abuse in phone interview
Devin Montgomery on April 15, 2009 3:19 PM ET

[JURIST] Guantanamo Bay [JURIST news archive] detainee Mohammad El Gharani [advocacy backgrounder] has alleged that he has been recently abused by guards at the military prison, according to a Tuesday report [text] by Al Jazeera. El Gharani reportedly made the allegations during a phone interview with the Middle-Eastern news service, saying that guards regularly beat him, have used tear gas against him, and have broken his teeth. He also said the abuse started before US President Barack Obama took office, but has still continued. In response to the allegations [AP report], US Navy Lieutenant Commander Brook DeWalt on Wednesday said that there was no evidence to support El Gharani's claims, and that the US does not permit news agencies to interview detainees because it is prohibited by the Third Geneva Convention [text]. DeWalt said that El Gharani apparently took part in the interview during a phone call he was permitted to make to his family, and that the US is investigating the phone call.

In January, a judge for the US District Court for the District of Columbia [official website] granted habeas [opinion, PDF; JURIST report] to Gharani and ordered his release. In March, excerpts from a previously-undisclosed report by the International Committee of the Red Cross (ICRC) [official website] characterized tactics used against terrorism suspects at Guantanamo during the George W. Bush administration as torture [text; JURIST report]. In February, the US Department of Defense officially released [JURIST report] a report [text, PDF; JURIST report] in which it said that detainee conditions at the prison now comport with the Geneva Conventions.






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Canada prosecutors to appeal first sentence under new anti-terrorism act
Devin Montgomery on April 15, 2009 2:43 PM ET

[JURIST] The Public Prosecution Service of Canada [official website] on Tuesday sought leave to appeal [press release] the prison sentence of 10.5 years given to Mohammed Momin Khawaja [CBC backgrounder; JURIST news archive], the first person to be charged and tried under the Anti-Terrorism Act [text; CBC backgrounder], arguing that the sentence was too lenient. Khawaja was convicted [JURIST report] in October of designing a remote detonator and providing other support to a group that was convicted in 2007 [JURIST report] of planning to detonate a large fertilizer bomb. When Ontario Superior Court [official website] Justice Douglas Rutherford sentenced Khawaja [reasons for sentence, PDF; JURIST report] in March, prosecutors asked that he be given more than two life sentences. Lawyers for Khawaja have also said they will appeal the sentence [CNS report], arguing that it was too long, and that he should have been granted more credit for time served.

Khawaja was found guilty of participating in a terrorist group, instructing a person to finance terrorism, making property available to terrorists, contributing to a terrorist group, and facilitating terrorism. In June, Khawaja pleaded not guilty [JURIST report] to the charges and his lawyer said the allegations were exaggerated and based on hearsay evidence that should have been excluded. In 2007, Canadian Federal Court Judge Richard Mosley refused to require the release of confidential evidence [JURIST report] against Khawaja, explaining that "disclosure of most of the information would be injurious to national security or to international relations." Khawaja was arrested [JURIST report] in March 2004.






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Federal court strikes down Florida law targeting Cuba travel companies
Ximena Marinero on April 15, 2009 8:22 AM ET

[JURIST] The US District Court for the Southern District of Florida [official website] on Tuesday struck down [order, PDF] as unconstitutional a Florida state law that requires travel companies offering service to Cuba to post substantially higher bonds than companies that do not offer Cuban travel. Last month, the US Department of Justice (DOJ) [official website] entered a Statement of Interest [text, PDF] in the case, urging the court to overturn the 2008 Sellers of Travel Act [materials] because it impeded the federal government's ability to speak with one voice when managing relations with other nations. The DOJ argued that recent amendments to the act unlawfully impose burdens on federally protected travel that promotes Cuba's "peaceful transition to democracy." Fully adopting DOJ's position, the court declared the law unconstitutional, holding that, "[t]he State of Florida is not entitled to adopt a foreign policy under our Constitution or interfere with the prerogative of the United States to establish a carefully balanced approach to relations with foreign countries, including Cuba." The court also said that the law violates the Supremacy Clause, the federal government's foreign affairs power, the Foreign Commerce Clause, and the Interstate Commerce Clause. Florida State Rep. David Rivera (R) [official profile], a Cuban American and original sponsor of the law, deplored [Tampa Bay Business Journal report] the decision and said he will consider introducing new legislation on the issue.

On Monday, US President Barack Obama ordered the lifting of travel restrictions and restrictions on money transfers [press release; JURIST report] between Cuban-Americans and their families in Cuba. He also ordered that US telecommunications companies be allowed to work within Cuba to facilitate communication between families split between the two countries. Earlier this year, Congress approved legislation that relaxed rules put in place by the Bush administration in 2004 [JURIST report]. In February, a bill [H.R. 874 materials] was introduced [JURIST report] into the House of Representatives [official website] that would end the ban on travel by US residents to Cuba. A similar bill [S. 428 materials] is pending in the Senate [official website].






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DC Circuit grants congressman immunity in Haditha defamation suit
Ingrid Burke on April 15, 2009 8:19 AM ET

[JURIST] The US Court of Appeals for the District of Columbia [official website] on Tuesday dismissed [opinion, PDF] a defamation suit [complaint, PDF; JURIST report] filed by a former US Marine against Rep. John Murtha (D-PA) [official website] after ruling that Murtha was acting in an official capacity when he made allegedly defamatory statements to the press in 2006. Former US Marine Corps sergeant Frank Wuterich [JURIST news archive] alleged that Murtha's comments suggesting that Wuterich had participated in killing innocent Iraqi civilians were made outside of the scope of official duty on the grounds that they were not "of the kind he is employed to perform" and that they were intended to serve his private interests. The three judge panel held that Murtha was acting in his official duty and that the Westfall Act [text], which grants federal employees absolute immunity from tort claims arising out of actions taken in the course of official duties, applied:

[I]t is clear that Wuterich has not alleged any facts that even remotely suggest that Congressman Murtha was acting outside the scope of his employment when he spoke about the Haditha incident… [T]he underlying conduct – interviews with the media about the pressures on American troops in the ongoing Iraq war – is unquestionably of the kind that Congressman Murtha was employed to perform as a Member of Congress. [citations omitted]
Wuterich has not indicated if he plans to appeal or seek an en banc rehearing.

Murtha made the statements at issue in May 2006 regarding the alleged November 2005 murders of 24 Iraqi civilians [JURIST reports] in the city of Haditha. Wuterich filed suit for defamation and invasion of privacy in August 2006, and Murtha initially responded to the suit in a public statement [text] explaining that his goal had been to raise awareness regarding the intense pressure on Marines in Iraq and on the cover-up of the incident. In December 2006, Wuterich and seven other Marines were formally charged with various counts of unpremeditated murder after the completion of military investigations [JURIST reports]. Shortly after the convictions, a Naval Criminal Investigative Serice (NCIS) report detailing Wuterich's point blank shootings of several Iraqi students was leaked to the Washington Post [Washington Post report]. Last September, former Lance Cpl. Justin Sharratt filed a separate defamation suit [JURIST report] against Murtha based on the same comments. Sharratt was cleared of all charges [JURIST report] stemming from the Haditha incident in 2007.





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Afghanistan women protest controversial law restricting women's rights
Matt Glenn on April 15, 2009 7:45 AM ET

[JURIST] A group of approximately 300 Afghan women protesting a law that critics say severely curtails womens' rights were confronted by a crowd of approximately 1,000 counter-protesters Wednesday, some of whom threw stones and gravel at the women. The protest took place outside a mosque run by Shi'ite cleric Mohammad Asif Mohseni who spoke out [JURIST report] in support of the Shi'ite Personal Status Law [JURIST news archive] over the weekend. Police stood between the two groups [AP report] to prevent further violence against the women. Protesters say that the new law, which reportedly allows husbands to demand sex from their wives at any time except in a few narrowly defined circumstances and prevents women from leaving their home unaccompanied without their husband's permission, is reminiscent of laws under the Taliban [JURIST news archive] and violates Afghanistan's constitution [text, PDF]. The larger group of counter-protesters shouted down the protesters, claiming that the protesters and international critics of the law are attempting to interfere with Afghan democracy. Human Rights Watch (HRW) [advocacy website] supported the protest [press release] and urged Afghanistan's government to heed the protesters' call to the reverse the law.

The Taliban claimed responsibility [JURIST report] Sunday for killing Afghan politician and women's rights advocate Sitara Achakzai outside her home. Earlier this month, Afghan President Hamid Karzai [BBC profile; JURIST news archive] announced the law would not be enforced [JURIST report] until the Ministry of Justice [official website] had reviewed the bill as Karzai ordered [JURIST report] two days before. Karzai faced international criticism after signing the still unpublished bill [JURIST report] last month. The law affects only Shi'ite Muslims [BBC backgrounder] who make up 10 to 20 percent of Afghanistan's population and was seen by many as a conciliatory move by Karzai to appease the Taliban and increase his approval among Shi'ites before he faces re-election in August [JURIST report].






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Bolivia president ends hunger strike after final version of election law passed
Andrew Gilmore on April 15, 2009 7:31 AM ET

[JURIST] Bolivian President Evo Morales [official website; BBC profile] ended his five-day hunger strike after the Bolivian National Congress [official website, in Spanish] approved [press release, in Spanish] the final version of a new election law [proposed text, in Spanish]. Approval of the law paves the way for Morales to run for another term [BBC report] as president this December. Morales declared himself on hunger strike [YouTube video, in Spanish; AP report] Thursday until congress passed the law because the 60-day period decreed in the new Bolivian constitution [text, PDF] had lapsed earlier in the week. The congress approved the general framework [press release, in Spanish; JURIST report] on Thursday but had not agreed on the final details until Tuesday.

The law will regulate election of the congress, president, and vice-president of Bolivia. In February, Bolivia's new constitution went into effect, after being approved [JURIST reports] by national referendum in January. Other measures adopted by the constitution include land reform and regulations [JURIST report] on single farms to limit acreage to 12,400 and placing economic and social requirements on them.






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Sixth Circuit stays deportation of accused Nazi guard
Andrew Gilmore on April 15, 2009 6:27 AM ET

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] granted [order, PDF] Tuesday a stay of deportation of accused Nazi prison guard John Demjanjuk [NNDB profile; JURIST news archive]. The court issued the stay while it considers Demjanjuk's appeal of last Friday's order by the Board of Immigration Appeals that denied his emergency stay of deportation [JURIST report]. Demjanjuk faces deportation to Germany, where in March a Munich district court charged [JURIST report] him with 29,000 counts of accessory to murder for his alleged involvement at the Sobibor [Death Camps backgrounder] concentration camp. In his motion [text, PDF], Demjanjuk argued that public interest weighed in favor of the stay, while the US Department of Justice (DOJ) [official website] argued [response, PDF] that the court lacked jurisdiction to order the stay since no final order of deportation had been issued. In granting the stay, the Sixth Circuit ruled that "[b]ecause it is our understanding that the government may remove the petitioner later today, we are compelled to rule on the motion for a stay prior to addressing the jurisdictional concerns raised by the government."

Last week, a US immigration judge revoked a stay of deportation [JURIST report] issued for Demjanjuk. The stay had been ordered [AP report] after Demjanjuk filed a motion to reopen his case. The immigration judge ruled [AFP report] that the stay had been ordered in error and revoked it, stating the motion should have been filed with the BIA. Demjanjuk has fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. In 2008, the US Supreme Court denied certiorari in Demjanjuk v. Mukasey [order, PDF; JURIST report], ending the appeals process for his deportation order. Demjanjuk was appealing a 2005 ruling [JURIST report] by then-US Chief Immigration Judge Michael Creppy which ordered his deportation. Demjanjuk had previously lost his appeal to the BIA. Additionally, the US Court of Appeals for the Sixth Circuit denied Demjanjuk's petition for review [text, PDF] in January 2008. In 1988, Demjanjuk was convicted and sentenced to death by an Israeli court which found that he was a notorious guard from Treblinka nicknamed "Ivan the Terrible." The sentence was vacated by the Israeli Supreme Court in 1993, and Demjanjuk returned to the US.






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JURIST nominated for Webby Award as best law website
Jaclyn Belczyk on April 14, 2009 3:55 PM ET

[JURIST] JURIST [FAQ] was nominated Tuesday for a prestigious Webby Award [awards website] as the best Law website of 2009. Called the "Internet's highest honor" by the New York Times and presented by the International Academy of Digital Arts and Sciences [profession website], the "Webbys" are the leading international awards honoring excellence in interactive design, creativity, usability, and functionality on the Internet.

As a Webby Award nominee, JURIST is also eligible to win a People's Voice Award [awards website]. Voting on Webby nominees is open to the public from April 14 to April 30. To vote for JURIST, go to the "People's Voice" voting site by clicking here. Register (you may need to scroll down), get the activation code that will be sent to your e-mail account, then log in to the People's Voice site, click on the "Website" grouping, scroll down to "Society" and vote in the Law category. The process takes just a couple of minutes. It's easy. The People's Voice site also lets you write and leave a review of JURIST for the information of other voters.

The 13th Annual Webby Awards competition received more than 10,000 entries from all 50 states and more than 60 countries worldwide. Also receiving finalist nominations in the Law category [nomination list] this year were GetLegal, Immigration Advocates Network, WomensLaw.org, and Workplace Fairness [websites]. Webby nominees in other categories this year include the New York Times, BBC News, PBS, National Geographic, and NPR. Winners will be announced in New York May 5.

Headquartered at the University of Pittsburgh School of Law [law school website], JURIST is powered by a team of some 35 law student reporters, editors, and web developers [staff list] led by law professor Bernard Hibbitts [profile] who volunteer their time and talent to the project, working with leading legal experts from around the world to provide up-to-the minute legal news, primary source research, and analysis as an educational service to the public and the legal community.

JURIST was nominated for a Webby [JURIST report] in 2008 and was also named an Official Honoree in the Students category [awards website]. JURIST won the Webby People's Voice Award as the best Law website of 2006 and in 2007 was named an Official Honoree [JURIST reports].






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Ex-Qwest CEO Nacchio begins serving sentence for insider trading after losing appeals
Andrew Morgan on April 14, 2009 3:51 PM ET

[JURIST] Former Qwest Communications [corporate website] CEO Joseph Nacchio [JURIST news archive] on Tuesday began serving a six-year sentence for insider trading after the US Court of Appeals for the Tenth Circuit [official website] denied [order, PDF] Monday his request [motion, PDF] to postpone imprisonment. Nacchio had argued that his surrender date should be delayed pending an appeal to the US Supreme Court. A three judge panel for the Tenth Circuit found that Nacchio had not met the criteria for release [18 USC § 3143(b)] because, "the showing as to even the more lenient [Supreme Court review standard urged by Nacchio] is insufficient: Mr. Nacchio has not shown that there is a reasonable chance that the Supreme Court will grant his petition." Nacchio also filed an emergency appeal with Supreme Court Justice Steven Breyer [official biography, PDF] requesting that he be released on bail while the Court decides whether to hear his appeal. Breyer rejected the appeal without comment.

Nacchio reported to the minimum security prison camp at FCI Schuylkill [official website], marking an end to nearly two years of appellate proceedings following his April 2007 conviction [JURIST report] for illegally selling $52 million of Qwest stock in 2001. Nacchio's conviction was overturned [JURIST report] by a Tenth Circuit panel in March 2008 due to improperly excluded expert testimony, but was reinstated [opinion, PDF] in a February 2009 en banc rehearing requested [JURIST report] by the prosecution. Federal prosecutors indicted Nacchio in December 2005 on 42 counts of insider trading [JURIST report]. He and other former Qwest executives still face civil fraud charges [JURIST report] brought by the US Securities and Exchange Commission [official website] on allegations that Qwest improperly reported approximately $3 billion in revenue that eased its 2000 merger with US West.






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Blagojevich pleads not guilty to corruption charges
Safiya Boucaud on April 14, 2009 3:38 PM ET

[JURIST] Former Illinois governor Rod Blagojevich [JURIST news archive] pleaded not guilty to corruption charges Tuesday before the US District Court for the Northern District of Illinois [official website]. Earlier this month, Blagojevich was indicted [JURIST report] on 16 felony counts, including wire fraud, attempted extortion, racketeering conspiracy, extortion conspiracy, and making false statements. Blagojevich pleaded not guilty on all counts. Also indicted were his brother Robert Blagojevich, who also pleaded not guilty on Tuesday, his former chief of staff John Harris, campaign fundraiser and former fund chairman Christopher Kelly, fundraiser William Cellini, and former general counsel and campaign fund chairman Alonzo Monk. Harris, Kelly, and Cellini will be arraigned Thursday, and Monk is scheduled for arraignment next week.

In January, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich is the first Illinois governor to be impeached and removed from office. Blagojevich had boycotted [JURIST report] the impeachment proceedings against him, appearing only at the end of the Senate hearings to make a final plea to remain in office. Blagojevich and Harris were initially arrested [JURIST report] in December.






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European Commission claims UK violating EU Internet privacy protections
Bhargav Katikaneni on April 14, 2009 12:09 PM ET

[JURIST] The European Commission (EC) [official website] formally notified [press release] the UK Tuesday that it is starting infringement proceedings [EC backgrounder] against the UK for failure to follow EU Internet privacy and data protection rules [text]. The commission specifically referred to "Phorm" [BBC report], an internet technology used by UK Internet service providers (ISPs) to monitor user web-surfing habits and deliver personalized advertising without the user's consent. The program was stopped after public outrage [Guardian report], but the EC said it was unsatisfied with the official response to "Phorm" and pointed that out weak UK laws meant that the authorities could do little to actively protect user privacy. In calling for an overhaul of the UK laws, the EC said:

Under UK law, which is enforced by the UK police, it is an offence to unlawfully intercept communications. However, the scope of this offence is limited to 'intentional' interception only. Moreover, according to this law, interception is also considered to be lawful when the interceptor has 'reasonable grounds for believing' that consent to interception has been given. The Commission is also concerned that the UK does not have an independent national supervisory authority dealing with such interceptions.
The infringement proceedings give the UK two months to change their laws to comply with EU regulations. If the UK fails to respond, the commission may then issue a "reasoned opinion" in the matter, and finally, if necessary, refer the matter to the European Court of Justice (ECJ) [official website].

Initially, the UK government had said that "phorm" was legal and compliant [BBC report] with British and EU telecommunication laws. According to that source report, British Telecom (BT) [corporate website] had used the technology to track approximately 36,000 Internet users as they surfed the web in 2006 and 2007. Other UK ISPs, including Virgin Media [corporate website] and Talk Talk were set to deploy the technology before the news broke.





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Thailand court issues arrest warrants for ex-PM Shinawatra, protest leaders
Brian Jackson on April 14, 2009 11:52 AM ET

[JURIST] A Thai court on Tuesday issued arrest warrants for 13 leaders of anti-government protests, including former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive]. The warrants were issued a day after Shinawatra called for the overthrow of the Thai government [Al-Jazeera reports] by United Front for Democracy against Dictatorship protesters, who have since ended their protests [Bangkok Post report]. Current Prime Minister Abhisit Vejjajiva [BBC profile] said that the state of emergency [JURIST report] he declared on April 11 will remain in force [Bangkok Post report] until there is a reasonable level of stability in Bangkok. He had previously lifted the state of emergency in Pattaya, but the protests there resulted in the cancellation [press release, PDF] of the Association of South-East Asian Nations summit that was scheduled to take place April 10-12. The US State Department has condemned the violence [press briefing] and urged a peaceful resolution to the protests.

Shinawatra has been at the center of several controversial events in Thailand since being overthrown in a military coup [JURIST report] in 2006. In December, the Constitutional Court of Thailand disbanded the People's Power Party [JURIST report], long associated with Shinawatra, and banned his brother-in-law, Somchai Wongsawat, from politics for five years. In October, Shinawatra was convicted on charges of corruption for the purchase of land from a government-controlled fund, and in July his wife was convicted on charges of tax evasion [JURIST reports].






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Fiji lawyers urge judges to resist ouster
Amelia Mathias on April 14, 2009 8:20 AM ET

[JURIST] Members of Fiji's Law Society [organization website] on Tuesday called for deposed judges to remain in office and resist the current military regime's attempts to oust them. Judiciary confusion and political upheaval have continued in Fiji as lawyers refused to accept [Australian report] the dismantling of the government by President Ratu Josefa Iloilo [official profile]. Working with prime minister and head of Fijian military Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile], the military-backed government on Tuesday arrested [Australian report] law society president Dorsami Naidu. The turmoil comes days after the Court of Appeal held that Iloilo's 2006 appointment of Bainimarama as prime minister was unconstitutional [JURIST report], prompting Iloilo to dismantle the government and suspend the constitution [JURIST report]. Fiji, a member of the Commonwealth [official website], now faces expulsion from that body and regional groups. In anticipation of civilian unrest, the military has been given permission to shoot civilians [UPI report], and a 30-day period of emergency has been put in place. The central bank has tightened exchange rates [Reuters report] as well, with the head offices reportedly being held by security forces. Bainimarama and Iloilo have promised to hold elections in 2014.

The turmoil has built since Iloilo reappointed Bainimarama prime minister [JURIST report] over the weekend. After Friday's announcement of the suspension of the constitution, US State Department [official website] spokesman Richard Aker criticized [press release] Iloilo's decision, saying it was a step backwards for the country, and called on Fiji to continue to recognize rights outlined in the suspended constitution. Iloilo's government has defended the 2006 coup as legal [JURIST report] because Iloilo had reserve powers that permitted him to dismiss the government and appoint new leaders, and he had given his permission to Bainimarama. Two days after the coup in December 2006, an interim prime minister had said that the coup was technically "illegal" [JURIST report] but necessary.






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Iran court tries US journalist on espionage charges
Adrienne Lester on April 14, 2009 8:12 AM ET

[JURIST] A spokesperson for the Iranian Judiciary announced Tuesday that an imprisoned US journalist was tried on espionage charges Monday. The Revolutionary Court of Iran conducted the trial of Roxana Saberi [advocacy website], accused of passing classified information to US intelligence agencies, in proceedings closed to the public [AP report]. Saberi was arrested [NYT report] last month after buying a bottle of wine, as alcohol consumption is banned in Iran. Initially, it appeared she would face charges for working as a freelance journalist for NPR and the BBC without Iranian press credentials, but once she was in custody the Iranian government charged her with espionage [AP report]. US officials, including Secretary of State Hillary Rodham Clinton [official profile], have called for Saberi to be released [NYT report]. The verdict from Saberi's trial is expected within several weeks. If convicted, Saberi could face execution.

Last year, the Committee to Protect Journalists [advocacy website] reported that Iran ranked sixth in the world [report] for total number of imprisoned journalists. In the past two years, Iran has arrested several journalists and scholars on espionage charges. In 2007, Iran accused four Iranian-Americans of belonging to a US-organized spy network. Iran formally charged [JURIST report] Iranian-American scholar Dr. Haleh Esfandiari [WWC profile] for allegedly plotting "against the sovereignty of the country." Iran also charged Dr. Kian Tajbakhsh [OSI press release] and Radio Farda [media website] correspondent Parnaz Azima with allegedly engaging in an espionage conspiracy [JURIST report]. An Iranian judge said that Esfandiari and Tajbakhsh admitted to carrying out some "activities" [JURIST report], although it was unclear if their statements were tantamount to an admission of spying.






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Pakistan president signs legislation to implement Sharia law in province
Andrew Gilmore on April 14, 2009 7:28 AM ET

[JURIST] Pakistan President Asif Ali Zardari [BBC profile; JURIST news archive] signed legislation Monday that would establish Islamic Sharia law [CFR backgrounder; JURIST news archive] in the volatile North West Frontier Province (NWFP) area of Swat, sending the bill [Daily Times report] to the Pakistani parliament for approval. The Pakistani government and Islamic militants linked to the Taliban [JURIST news archive] reached an agreement [JURIST report] in February on the deal, which is contingent on peace [NYT report] between the government and the militants. Zardari's endorsement of the deal follows a parliamentary resolution [Dawn report] passed earlier Monday calling on the president to ratify the agreement. As with an earlier tentative agreement [JURIST report] reached in May 2008 to establish Sharia law in the Swat area, Monday's agreement will create a separate justice system [BBC report] for the whole region.

The agreement for the implementation of sharia law in Swat has been seen by many as a controversial concession [Dawn report] by the Pakistani government to Islamic militant groups. The May 2008 agreement [Guardian report] to establish Sharia law in the Swat area, which collapsed amid ongoing violence between Islamic groups and the Pakistani military, provided that militants would halt suicide attacks and hand over foreign fighters under local protection. In exchange, an Islamic justice system would have been created to operate in parallel with the secular system, and established Pakistani courts would have been advised by Islamic scholars. Violence by Islamic militants has long been a problem in Pakistan's outlying provinces. Earlier in 2008, Pakistan's top Taliban leader Baitullah Mehsud [BBC profile] and four others were charged [JURIST report] in the assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. Meshud is the commander of Tehrik-e-Taliban, a group of Islamic militants with links to al Qaeda. He has denied involvement in the attack.






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Minnesota court declares Franken winner of US Senate race
Eszter Bardi on April 14, 2009 7:21 AM ET

[JURIST] A three-judge panel for the Minnesota State Court for the Second District [official website] on Monday declared [order; PDF] Al Franken [campaign website] the winner of the state's 2008 US Senate race over opponent Norm Coleman [campaign website]. Both candidates had brought claims before the court over absentee ballots in their favor that they said were legally cast but wrongfully rejected. The court held that an April 7 order giving Franken 1,212,629 votes and Coleman 1,212,317 votes entitled Franken to be certified as the winner, and dismissed claims by Coleman that the count either included votes which had been counted twice, or should have included votes cast in his favor which still would not have given him more votes than Franken. Franken celebrated [press release] the court's finding, and asked Coleman to accept the ruling and allow Franken to begin serving in the US Senate. A spokesperson for Coleman said he would challenge the order [press release] in the Minnesota State Supreme Court, and that he may even pursue the case to the US Supreme Court.

Amy Klobuchar (D-MN) [official website] currently serves as the sole senator of Minnesota.  Prior to the court order, a mandatory manual recount concluded in January similarly showed that Franken had won the election by 225 votes.






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Serbia to seek US extradition of Nazi war crimes suspect
Andrew Gilmore on April 14, 2009 6:20 AM ET

[JURIST] Chief prosecutor of the Serbian Office of the War Crimes Prosecutor [official website] Vladimir Vukcevic said Monday that Serbia would ask the US for the extradition of alleged Nazi war criminal Peter Egner after his US citizenship is revoked. Peter Egner, 86, has admitted to serving in the Nazi-run Security Police and Security Service, a unit which is believed to have taken part in the killings of more than 17,000 people in the area surrounding then German-occupied Belgrade. Speaking to a Jewish community organization, Vukcevic announced the forthcoming extradition request [B92 report], which would allow Egner to be tried for his alleged crimes in Serbia. Vukcevic told the AP that Serbian prosecutors have been collecting evidence [AP report] against Egner for use against him at trial.

In July, Serbian prosecutors confirmed [JURIST report] that they were gathering evidence for a case against Egner. Earlier that same week, the US Department of Justice (DOJ) filed a complaint [text, PDF; JURIST report] in the US District Court for the Western District of Washington [official website], seeking to revoke Egner's US citizenship. Egner became a US citizen in 1966 but failed to disclose his Nazi service on his citizenship application. The DOJ argued that he was ineligible for citizenship both because of his service and because he concealed that information on his application.






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Obama administration eases Cuba travel restrictions
Eszter Bardi on April 13, 2009 3:36 PM ET

[JURIST] US President Barack Obama [official profile] has ordered the lifting of travel restrictions and restrictions on money transfers [press release] between Cuban-Americans and their families in Cuba. Obama also ordered that US telecommunications companies be allowed to work within Cuba to facilitate communication between families split between the two countries. The plan was put forward as not only necessary for the interests of the families, but also as way to bolster a democratic movement within Cuba:

Cuban American connections to family in Cuba are not only a basic right in humanitarian terms, but also our best tool for helping to foster the beginnings of grassroots democracy on the island. There are no better ambassadors for freedom than Cuban Americans. Accordingly, President Obama will direct the Secretaries of State, Treasury, and Commerce to support the Cuban people’s desire for freedom and self-determination by lifting all restrictions on family visits and remittances as well as taking steps that will facilitate greater contact between separated family members in the United States and Cuba and increase the flow of information and humanitarian resources directly to the Cuban people. The President is also calling on the Cuban government to reduce the charges it levies on cash remittances sent to the island so family members can be assured they are receiving the support sent to them.
The eased restrictions still do not lift [NPR report] the general economic embargo [DOS backgrounder] that has been in place against Cuba since 1962. Travel restrictions to Cuba will remain in effect for Americans of non-Cuban descent, and Americans continue to be barred from sending gifts to high-ranking Cuban politicians.

The administration had hinted that it may lift the restrictions [JURIST report] earlier this month. Earlier this year, Congress approved legislation that relaxed rules put in place by the Bush administration in 2004 [JURIST report]. In February, a bill [H.R. 874 materials] was introduced [JURIST report] into the US House of Representatives [official website] that would end the ban on travel by US residents to Cuba. A similar bill [S. 428 materials] is pending in the US Senate [official website]. In October 2008, the UN General Assembly (UNGA) [official website] adopted [UNGA press release] by 185-3 a resolution [text, PDF] urging the US to lift [JURIST report] its longstanding embargo on Cuba.





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US Army sergeant pleads not guilty to killing Iraq detainees
Safiya Boucaud on April 13, 2009 11:58 AM ET

[JURIST] US Army Sgt. John Hatley [JURIST news archive] entered a plea of not guilty to murder charges at his court-martial on Monday for the killing of four unarmed Iraqi prisoners [NYT report] in 2007. Hatley, along with Sgt. Michael Leahy, Jr. and Sgt. 1st Class John Mayo, was charged [JURIST report] in September with premeditated murder, conspiracy, and obstruction of justice. Hatley also faces murder charges for a separate killing of a prisoner during early January 2007. The trial began Monday at a US military base in Germany and will last all week with a verdict expected Friday [DW report]. If convicted, Hatley could face life in prison.

Last month, Mayo was convicted and sentenced [JURIST report] to 35 years in prison on charges of premeditated murder and conspiracy to commit premeditated murder after he pleaded guilty at his court-martial proceedings. He has also agreed to testify against Hatley [AP report]. Leahy was convicted [JURIST report] in February and sentenced to life in prison with the possibility of parole. Staff Sgt. Jess Cunningham, originally an alleged co-conspirator against whom charges were dropped, testified against Leahy [JURIST report] at his trial. Fellow unit members Spc. Belmor Ramon and Spc. Steven Ribordy pleaded guilty last year to conspiracy and accessory to murder [JURIST reports], respectively, in connection with the incident.






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Iraq official seeks closure of media outlets for misquoting
Ingrid Burke on April 13, 2009 11:07 AM ET

[JURIST] Iraqi military spokesperson Major General Qassim Atta said Monday that he is seeking the closure of the Bagdad offices of newspaper Al-Hayat and television network Al-Sharquiya [media websites, in Arabic] after the two media outlets allegedly misquoted him in a story reported last week. Atta said he has sued the the two services for incorrectly reporting [NYT report] that he had ordered the re-arrest of several detainees recently released by American forces. Also Monday, Iraq's National Media Center of the Council of Ministers criticized [AP report] both local and international media for what it said was "inciting public dissent" by positively depicting paramilitary leaders wanted by the government.

Iraq has been criticized in the past for restrictive media policies. In 2007, the government banned news and camera crews from photographing bomb sites [JURIST report]. Also in 2007, Iraqi Council of Representatives [official website, in Arabic] approved legal action [JURIST report] against Al Jazeera [media website] for "insulting" top Shiite cleric Grand Ayatollah Ali al-Sistani [BBC profile; official website]. In 2006, the parliament banned journalists from their sessions [JURIST report] to prevent reporting of contradictory statements made by politicians. Also in 2006, the Interior Ministry announced the formation of a specialized unit that would monitor news coverage [JURIST report] to correct "fabricated and false news" that the ministry claimed gave the Iraqi people the wrong impression that the situation in the country is worse than it actually is.






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China issues first human rights protection plan
Benjamin Hackman on April 13, 2009 8:23 AM ET

[JURIST] The government of China [official website] on Monday issued its first national plan [text] aimed at protecting human rights. The Information Office of the State Council [official website] published the National Human Rights Action Plan of China, which sets forth the government's human rights policy for 2009 and 2010. Academic, legal, and civil-rights groups helped government officials draft the plan, which states that the government is striving to protect people's rights to "education, employment, medical and old-age care, and housing." The plan aims to protect ethnic minorities, promote gender equality, guarantee suspects the right to an impartial trial, and prohibit illegal detentions and the use of torture to extract confessions from suspects. Under the plan, China will also seek to provide basic nationwide health care, slow its greenhouse-gas emissions, and protect "normal religious activities." The plan is framed by the Chinese constitution [text] and is based on principles [Xinhua report] found in the Universal Declaration of Human Rights [text] and the International Covenant on Civil and Political Rights [text], which the government has signed [accession chart] but not ratified [JURIST report].

The Information Office announced in November [JURIST report] that China would draft a human rights plan in response to calls from the UN. The UN has criticized China for the use of torture to extract confessions from suspects, and for the mistreatment of prisoners [JURIST reports]. In February, the Chinese delegation to the UN Human Rights Council (UNHRC) [official website] defended [JURIST report] China's human rights record while presenting a report [text, PDF] in compliance with the UNHRC's Universal Periodic Review (UPR) [official website] process. Ambassador Li Baodong said that China has been taking steps to improve its legal system, promote democracy, and encourage non-governmental organizations.






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Zimbabwe parliament forms committee to draft new constitution
Jay Carmella on April 13, 2009 8:10 AM ET

[JURIST] The Zimbabwean House Speaker announced Sunday the formation of a committee to draft a new constitution. The drafting of a new constitution was part of the power sharing agreement [JURIST report] signed last September by President Robert Mugabe [BBC Profile; JURIST news archive] and Movement for Democratic Change (MDC) [party website; JURIST news archive] leader and now-Prime Minister Morgan Tsvangirari [BBC profile; JURIST news archive]. The committee will be composed [TZG report] of 25 members of parliament, including nine from Mugabe's African National Union-Patriotic Front (ZANU-PF), 12 from the two formations of the MDC, a chief, and three other appointed positions. The committee will meet for the first time on Monday, and hopes to have a draft of the new constitution prepared by February 2010 [Mail and Guardian report]. This would allow the draft to be introduced to parliament by October of next year and adopted by the end of 2010. Zimbabwe last attempted a constitutional referendum in 2000. That referendum was rejected due to concerns about the attempt of power that would be given to Mugabe. Following the defeat, Mugabe launched violent attacks against his opponents.

Recently, concerns have arisen regarding potential threats to the power sharing agreement when MDC treasurer Roy Bennett was indicted [JURIST report] on terrorism and other charges. In March, Bennett was released on bail [JURIST report], but is still facing a likely appeal from the attorney general. Bennett was originally sought for questioning [JURIST report] in relation to the allegations in 2006, but he had been seeking asylum in South Africa until recently [IOL report]. Treason charges against him were dropped [Times report] in favor of the terrorism and other charges.






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Bolivia president to continue hunger strike until final version of election law passed
Tere Miller-Sporrer on April 13, 2009 8:04 AM ET

[JURIST] Bolivian President Evo Morales [official website; BBC profile] vowed Sunday to continue a hunger strike until the Bolivian National Congress [official website, in Spanish] approves the final details of a new election law [proposed text, in Spanish]. Morales declared himself on hunger strike [YouTube video, in Spanish; AP report] Thursday until congress passed the law because the 60-day period decreed in the new Bolivian constitution [text, PDF] had lapsed earlier in the week. The congress approved the general framework [press release, in Spanish; JURIST report] on Thursday but has not yet agreed on the final details, though 67 out of 84 articles have been approved [La Prensa report, in Spanish].

The law will regulate election of the congress, president, and vice-president of Bolivia. In February, Bolivia's new constitution went into effect, after being approved [JURIST reports] by national referendum in January. Other measures adopted by the constitution include land reform and regulations [JURIST report] on single farms to limit acreage to 12,400 and placing economic and social requirements on them.






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Moldova constitutional court orders recount of controversial election results
Matt Glenn on April 13, 2009 6:54 AM ET

[JURIST] Moldova's Constitutional Court [official website] on Sunday ordered the nation's Central Election Commission to conduct a recount of last week's controversial parliamentary election. The ruling Communist party won nearly 50 percent of the vote [official results], leaving them only one seat short of the 61 seats needed to select the next president unopposed. Opposition groups claim that falsified voter registration rolls allowed government officials to fabricate votes. Members of some opposition groups fear that a recount will only legitimize the falsified election results and have demanded new elections [BBC report]. Moldova's Liberal Democrats said they are in the process of obtaining voter registration lists, which they will check for accuracy [Reuters report]. Some international groups, including the Organization for Security and Co-operation in Europe (OSCE) [official website], approved [OSCE report, PDF] the voting process as being generally fair. The recount will take place Wednesday.

The order follows a request for a recount from Moldovan President Vladimir Voronin [official website, in Romanian], a member of the Communist party, who reportedly called for the recount to calm the protests and restore faith in the government [BBC report]. Last week anti-Communist protesters who want a stronger relationship with Europe stormed the parliament building [BBC report] in Moldova's capital city of Chisinau, smashing windows and furniture.






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Afghanistan lawmaker and women's rights advocate killed by Taliban
Lucas Tanglen on April 12, 2009 3:31 PM ET

[JURIST] The Taliban [JURIST news archive] have claimed responsibility for the Sunday killing of Sitara Achakzai, a women's rights advocate in Afghanistan [JURIST news archive] and a member of Kandahar's provincial assembly. Achakzai, who had returned to Afghanistan to pursue women's rights after living in Germany during the Taliban's rule, was shot outside her Kandahar home [AP report] after being approached by gunmen on motorcycles. The killing [Kuwait News Agency report] comes in the midst of controversy over the Afghan central government's Shi'ite Personal Status Law [JURIST news archive], which reportedly requires a woman to seek her husband's permission before leaving the house and effectively condones rape within a marriage. The text of that law has not been officially published.

Last week, Mohammad Asif Mohseni, a key Shi'ite cleric, defended the status law [JURIST report] and characterized Western criticism of it as interference with Afghan democracy. President Hamid Karzai signed the measure into law in March - reportedly as a conciliatory measure towards the Taliban - then called for its review [JURIST reports] under mounting international pressure.






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China police investigate new prison death as larger review continues
Devin Montgomery on April 12, 2009 2:45 PM ET

[JURIST] Chinese police have begun an investigation into the Saturday death of another prisoner in the country's jails, state news service Xinhua reported [text] Saturday. It was the second death to occur in the facility this year, and comes after last week's announcement of an earlier death [Shanghai Daily report] in a separate facility. The investigation into this death comes as the Ministry of Public Security (MPS) [official website, in Chinese] conducts a broader investigation [JURIST report] into numerous "suspicious" prison deaths in the country. There has been widespread criticism following the deaths, which have frequently been labeled accidental though many suspect they are the consequence of abuse by guards or other inmates.

In late November, the UN Committee Against Torture [official website] said in response [text, PDF; JURIST report] to a report on China that it was "concerned about reports of abuses in custody, including high numbers of deaths, possibly related to torture or ill-treatment, and about the lack of investigation into these abuses and deaths in custody." The committee recommended that China arrange for independent investigations into all in-custody deaths and ensure that those responsible for the deaths are prosecuted. China later rejected the report [JURIST report], saying that it was biased. In July, a Chinese prosecutor was given a life sentence [JURIST report] for torturing and killing a corruption suspect.






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US Coast Guard chief calls for enforcement of international piracy laws
Lucas Tanglen on April 12, 2009 2:13 PM ET

[JURIST] A "legal framework" is needed to enforce existing international laws against piracy [JURIST news archive], Adm. Thad Allen [official profile; blog], Commandant of the US Coast Guard [official website], said in an interview [transcript, with video] on ABC's "This Week" [media website] Sunday morning. Allen said the latest acts of Somali piracy [BBC Q&A], in which American Capt. Richard Phillips was taken hostage after a struggle on the Maersk Alabama, highlighted the need for authorization for forces to enter Somali waters to combat piracy:

What you really have to have is a coordinating mechanism that ultimately brings these pirates to court where they can be held accountable. ... [T]hese are criminal acts. These are acts — crimes against the Law of the Sea Treaty, and they're also crimes against the 1988 convention in Rome,Suppression of Unlawful Acts Against the Safety of Maritime Navigation. There is ample legal requirements and jurisdiction to be able to take action against these pirates. And that's what we should be doing.
Allen said enforcement of piracy laws would remove pressure on merchants to pay ransoms. Phillips was freed [LAT report] later Sunday after a US Navy rescue operation in which three of his captors were killed.

In March, the European Union (EU) [official website] announced an agreement with Kenya [JURIST report] to transfer suspected pirates captured by EU counter-pirate operations into Kenyan custody for prosecution. In December 2008, the UN Office on Drugs and Crime (UNODC) [official website] called for greater judicial cooperation [JURIST report] to combat piracy off the coast of Somalia. In October 2008, the UN Security Council unanimously approved Resolution 1838 [text, PDF; press release], condemning all acts of piracy and armed robbery off the coast of Somalia, and calling on states to "deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia." Although maritime piracy is increasingly widespread, Somalia's coast has been ranked as the most dangerous in the world [BBC report] due to a surge in attacks on ships carrying traded goods or humanitarian aid [NPR report].





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Thailand PM imposes state of emergency after protests disrupt summit
Devin Montgomery on April 12, 2009 1:26 PM ET

[JURIST] Thailand Prime Minister Abhisit Vejjajiva [BBC profile] on Saturday instituted a state of emergency in Bangkok and several provinces and cancelled [press release] an ongoing summit of the Association of South-East Asian Nations (ASEAN) [official website] leaders in the country following an outbreak of protests calling for his resignation. The protests were lead by the United Front for Democracy against Dictatorship (UDD), a group associated with former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive]. Abhisit ended the state of emergency [Pattaya Daily News report] in the summit city of Pattaya later on Saturday, but the order remains in place in Bangkok and the surrounding area. UN Secretary General Ban Ki-moon [official profile] expressed regret [press release] at the summit's cancellation.

Under the state of emergency, public gatherings are banned, police are given broader powers to arrest, and the government may censor media reports, but large protests continued on Sunday [Bangkok Post report] despite the order. Thai Deputy Prime Minister Suthep Thaugsuban said the he did not believe there would be a coup [Xinhua report], but there have been reports that several government officials have been detained [Bangkok Post report] by the protesters.

Abhisit took over as prime minister in December, after the Constitutional Court of Thailand [official website, in Thai] ordered the dissolution [JURIST report] of the ruling People's Power Party (PPP) [party website, in Thai], and banned then-prime minister Somchai Wongsawat [Nation profile] from politics for five years as the result of an election fraud investigation. Thaksin, ousted as prime minister [JURIST report] in a 2006 military coup, was convicted on corruption charges [JURIST reports] by the Supreme Court of Thailand in October.






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Afghan cleric defends law limiting women's rights
Andrew Gilmore on April 11, 2009 5:09 PM ET

[JURIST] Mohammad Asif Mohseni, a key Shi'ite cleric in Afghanistan, defended a controversial law Saturday that critics say limits women's rights in the country. The measure, called the Shi'ite Personal Status Law [JURIST news archive], was signed into law [JURIST report] last month by President Hamid Karzai [BBC profile; JURIST news archive], but the law has yet to be published. Opponents of the law say that the law requires a woman to seek her husband's permission before leaving the house, and effectively condones rape [NYT report] within a marriage. Mohseni was critical of Western reaction to the law, characterizing the response [AFP report] as interference and a violation of Afghan democracy, and rejected a review of the law ordered last week [JURIST report] by Karzai. Afghanistan's constitution [text, PDF] requires equal rights for both both men and women, but allows for the country's Shia [BBC backgrounder] population to observe some of its own religious laws.

Signing the law was one of several legal actions that Karzai has been criticized for since his appointment as Afghanistan's interim president in 2002. In early March, the UN reported that the human rights situation in Afghanistan is worsening [JURIST report], one week after a similar US report rebuked Afghanistan for, among other problems, continued use of child labor [JURIST report]. In November, the UN urged Afghanistan to discontinue use of the death penalty [JURIST report], which Karzai had reinstated following a four-year moratorium [JURIST report]. In April 2008, the Taliban attempted to assassinate Karzai [Guardian report] during a military parade, the third attempt on his life since 2001.






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Federal judge rules Madoff can be forced into personal bankruptcy
Andrew Gilmore on April 11, 2009 4:20 PM ET

[JURIST] A federal judge ruled Friday that investors who lost money in Bernard Madoff's [JURIST news archive] alleged Ponzi scheme can force Madoff into personal bankruptcy to recover lost funds. The ruling from Judge Louis Stanton of the US District Court for the Southern District of New York [official website] removes a restriction on Madoff's bankruptcy that was established by Stanton in a December 2008 ruling [SEC press release] granting a preliminary injunction and asset freeze against Madoff. Stanton's ruling was opposed [Bloomberg report] by the US Securities and Exchange Commission (SEC) and the US Department of Justice (DOJ) [official websites], which argued that the appointment of a personal bankruptcy trustee would cause unnecessary delay and complexity to the Madoff proceedings.

Last month, Madoff pleaded guilty [JURIST report] to security fraud charges for his alleged involvement in a multi-billion dollar Ponzi scheme. In February, 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, then-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, then-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.






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Fiji military chief reappointed to head government after constitution suspended
Andrew Gilmore on April 11, 2009 2:39 PM ET

[JURIST] Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile], the head of the Fijian military, was reappointed Saturday [Reuters report] as prime minister of the country by President Ratu Josefa Iloilo [official profile] a day after Iloilo suspended the country's constitution [JURIST report] following a Thursday ruling [JURIST report] by the Fiji Court of Appeals that declared Bainimarama's original appointment as prime minister unconstitutional. Bainimarama led a 2006 coup d'etat [JURIST report] against the country's civilian government, removing the leadership while keeping the Fijian constitution intact. The court's Thursday ruling ordered the president to appoint a civilian prime minister until democratic elections for the post could be held. The reappointment of the military chief as head of government was met with condemnation [ABC report] by the United Nations and members of the Australian government, including Australian Prime Minister Kevin Rudd [official profile].

After the Friday announcement of the suspension of the constitution, US State Department [official website] spokesman Richard Aker criticized [press release] Iloilo's decision, saying it was a step backwards for the country, and calling on Fiji to continue to recognize rights outlined in the suspended constitution. In October, a Fijian lower court dismissed [JURIST report] a legal challenge to the 2006 coup brought by deposed prime minister Laisenia Qarase [BBC profile]. The Fijian government has defended the coup as legal [JURIST report] because Iloilo had reserve powers that permitted him to dismiss the government and appoint new leaders, and he had given his permission to Bainimarama. Two days after the coup in December 2006, an interim prime minister had said that the coup was technically "illegal" [JURIST report] but necessary.






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Obama administration to appeal Bagram detainees habeas ruling
Andrew Gilmore on April 11, 2009 1:46 PM ET

[JURIST] The administration of US President Barack Obama [official profile] will appeal a ruling made last week by Judge John Bates of the US District Court for the District of Columbia [official website] that allowed detainees being held by the US in Afghanistan to proceed with habeas corpus challenges [JURIST report] to their detention. Word of the appeal came Friday in a motion [text, PDF] filed by the US Department of Justice (DOJ) seeking certification of the court's order so that the DOJ can file an interlocutory appeal of the ruling, which approved habeas challenges by four foreign-born detainees being held at Bagram Air Base [official website; GlobalSecurity backgrounder]. The motion also asked the court to stay the proceedings pending forthcoming appellate review of the case. Solicitor General Elena Kagan [official profile] granted the case expedited status for review by the US Court of Appeals for the DC Circuit [official website]. In seeking a stay of the proceedings during the appellate review process, the DOJ motion concluded:

...any potential for harm to petitioners in continued detention during appellate proceedings does not outweigh the need for a stay. First, the Government intends to seek expedited appellate review of the jurisdictional ruling in the April 2, 2009 Order. Second, the President has established, by Executive Order, a deliberative process to address questions concerning Executive detention authority and options. See Executive Order 13,493: Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009). That Executive Order commands the creation of a Special Interagency Task Force to “conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.” Id. ¶ (e). The Task Force is scheduled to provide preliminary reports to the President and a final report by July of this year. Id. In particular, the Task Force will be reviewing the processes currently in place at Bagram and elsewhere, and will make recommendations to the President regarding those processes.

In sum, the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.
In last week's order, Bates applied a multi-factor test developed by the US Supreme Court in its decision in Boumediene v. Bush [opinion, PDF; JURIST report] for the application of the Constitution's Suspension Clause [text] to hold that the four detainees were entitled to proceed with their habeas challenges.

The DC District Court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In December, the court allowed habeas petitions [JURIST report] filed by two Guantanamo detainees to proceed until military commission charges against them were referred. Also in December, Judge Richard Leon of the DC District Court ruled that the government could continue to hold two detainees [JURIST report] who had filed habeas petitions challenging their detention, finding the government had met its burden of showing that the men were being lawfully detained under the court's definition of "enemy combatant."





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US immigration board denies accused Nazi guard stay of deportation
Adrienne Lester on April 10, 2009 2:14 PM ET

[JURIST] The US Board of Immigration Appeals (BIA) [DOJ backgrounder] denied Friday the emergency stay of deportation filed by accused Nazi prison camp guard John Demjanjuk [NNDB profile; JURIST news archive]. In March, a Munich district court charged [JURIST report] Demjanjuk with 29,000 counts of accessory to murder for his alleged involvement at the Sobibor [Death Camps backgrounder] concentration camp. Demjanjuk had filed the emergency stay of deportation denying the allegations and stating he was a Russian soldier held by the Nazis as a prisoner of war. Friday's decision [AP report] makes it likely that Demjanjuk will be extradited to Germany.

Last week, a US immigration judge revoked a stay of deportation [JURIST report] issued for Demjanjuk. The stay had been ordered [AP report] after Demjanjuk filed a motion to reopen his case. The immigration judge ruled [AFP report] that the stay had been ordered in error and revoked it, stating the motion should have been filed with the BIA. Demjanjuk has fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. In 2008, the US Supreme Court denied certiorari in Demjanjuk v. Mukasey [order, PDF; JURIST report], ending the appeals process for his deportation order. Demjanjuk was appealing a 2005 ruling [JURIST report] by then-US Chief Immigration Judge Michael Creppy which ordered his deportation. Demjanjuk had previously lost his appeal to the BIA. Additionally, the US Court of Appeals for the Sixth Circuit denied Demjanjuk's petition for review [text, PDF] in January 2008. In 1988, Demjanjuk was convicted and sentenced to death by an Israeli court which found that he was a notorious guard from Treblinka nicknamed "Ivan the Terrible." The sentence was vacated by the Israeli Supreme Court in 1993, and Demjanjuk returned to the US.






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Ninth Circuit again affirms Ukraine ex-PM corruption conviction
Amelia Mathias on April 10, 2009 1:54 PM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday refused [opinion; PDF] a petition for an en banc rehearing by former Ukranian prime minister Pavlo Lazarenko [BBC backgrounder; JURIST news archive], who had been on trial for money laundering and embezzling, allowing several of his convictions to stand. In September, the appeals court vacated [opinion, PDF] Lazarenko's nine-year sentence [JURIST report], setting aside five counts of wire fraud and a single count conviction for interstate transportation of stolen property. The court affirmed the conviction on eight counts and remanded to the lower court for resentencing. On Friday, the court denied Lazarenko's petition for an en banc rehearing, granted in part his petition for a panel rehearing, and issued a new opinion affirming and reversing the same counts and remanding for resentencing.

Lazarenko, who sought political asylum in the US during the 1999 Ukrainian presidential elections, is accused of defrauding and laundering at least $114 million from Ukrainian businesses and government projects between 1996 and 1997. Originally convicted [JURIST report] by a federal jury in 2004, 15 of the original 29 charges against Lazarenko were later dismissed [JURIST report], but the most serious charges were sustained. The former Ukrainian leader has been under house arrest in the US since his conviction.






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New York court rules same-sex partner lacks parental rights
Tere Miller-Sporrer on April 10, 2009 12:27 PM ET

[JURIST] A New York state appeals court ruled [decision text] Thursday that a same-sex partner lacks standing to assert parental rights over the biological child of her partner unless she has adopted the child. The ruling limits parental rights under NY Domestic Relations Law § 70 [text] to biological or adoptive parents, following precedent set in the 1991 case of Allison D. v. Virginia M. [decision text]. The trial court had rejected that precedent and ordered a hearing to determine whether the plaintiff's relationship with the child was tantamount to that of a parent. Amicus curiae briefs in favor of the hearing were submitted by the National Association of Social Workers, the National Association of Social Workers' New York State Chapter, the National Association of Social Workers' New York City Chapter, the American Civil Liberties Union, and the New York Civil Liberties Union [advocacy websites].

Thursday's decision comes shortly after a New York court ruled that a same-sex surviving spouse was entitled to inheritance [JURIST report], an outgrowth of New York's 2008 legal recognition of all out-of-state same-sex marriages [JURIST report]. This mandate supported an intermediate appellate court ruling [opinion, PDF; JURIST report] that legal same-sex marriages performed outside the state are entitled to recognition in New York. In September, the a New York judge dismissed [decision and order; JURIST report] a challenge to the directive.






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Rights group urges Uganda to end torture and illegal arrests
Eszter Bardi on April 10, 2009 12:24 PM ET

[JURIST] Advocacy group Human Rights Watch (HRW) [advocacy website] has called on Uganda to end what it said was the use of torture and unlawful arrest [text, PDF; press release] by the country's Joint Anti-Terrorism Task Force (JATT). According to HRW, JATT engaged in 106 documented cases of illegal or prolonged detentions between August 2008 and February 2009, and employed torture methods against both Lord's Resistance Army (LRA) [GlobalSecurity backgrounder] rebels and political opponents of the government. HRW said in its report released Wednesday that the JATT used the tactics in the name of combating terrorism, but was still violating international law:

The manner in which JATT carries out its operations-deliberate efforts to conceal arresting officers' identities and affiliations, disorienting suspects by blindfolding them while in transport, failing to inform detainees of the reason for their arrest, long-term incommunicado detention, and interrogations involving torture-reflects what appears to be a flawed policy on alleged rebel or terrorist activity, which includes committing serious violations of national and international law.
The group called on President Museveni [official profile] to adhere to his obligation under the UN Convention Against Torture and Cruel, Inhuman and Degrading Treatment [convention text] to investigate possible instances of torture, and urged the country to follow proper criminal procedures as mandated by the Uganda Constitution [text, PDF].

Prior calls by human rights groups for Uganda government officials to address the situation have gone unheeded. Although the rebel group LRA was expelled from Uganda in 2005, military conflict continues in the Karamoja region of the country, creating a volatile situation [US State Department report] to which JATT is responding. In its 2008 report on human rights [JURIST report], the UK Foreign and Commonwealth office cited counter-terrorism efforts as one of the leading causes of human rights abuses.





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Fiji president suspends constitution after court declares government illegal
Bhargav Katikaneni on April 10, 2009 9:08 AM ET

[JURIST] Fijian President Ratu Josefa Iloilo [official profile] announced Friday that he was suspending [statement text] the country's constitution [text], and revoking the appointment of all judicial officers, after the Fiji Court of Appeal on Thursday ruled [JURIST report] his appointment of military officer Commodore Josaia Voreqe Bainimarama [BBC profile] as Prime Minister unconstitutional. Iloilo had appointed Baininmara following a 2006 coup [JURIST report], but the Court of Appeal ordered him to appoint a civilian replacement for Baininmara until democratic elections could be held. Iloilo said that despite the action, other existing laws would continue to be enforced and that he would reconstitute the country's judiciary in coming days. He also said that Friday's moves were necessary to preserve law and order and to allow him to enact certain reforms before future election, saying the decision:

not only gives certainty but provides stability and the opportunity to carry out reforms which are crucial before true democratic elections can be held. In this respect I believe that a period of 5 years is necessary for an interim government to put into place the necessary reforms and processes.I shall also direct the soon to be appointed Interim Government to hold true democratic and parliamentary elections by September 2014 at the latest.
After the announcement, US State Department [official website] spokesman Richard Aker criticized [press release] Iloilo's decision, saying it was a step backwards for the country, and calling on Fiji to continue to recognize rights outlined in the suspended constitution.

In October, a Fijian lower court had dismissed [JURIST report] a legal challenge to the 2006 coup brought by deposed prime minister Laisenia Qarase [BBC profile]. The Fijian government has defended the coup as legal [JURIST report] because Iloilo had reserve powers that permitted him to dismiss the government and appoint new leaders, and he had given his permission to Bainimarama. Two days after the coup in December 2006, an interim prime minister had said that the coup was technically "illegal" [JURIST report] but necessary.





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CIA outlines new detention and interrogation policies
Brian Jackson on April 10, 2009 8:04 AM ET

[JURIST] CIA director Leon Panetta [official website] on Thursday outlined new techniques [press release] to be employed by the agency in their detention and interrogation of suspected terrorists. The new policies include discontinuing the use of contractors to conduct interrogations and a renewal of the agency's pledge to comply with President Barack Obama's executive order [JURIST report] to discontinue the use of enhanced interrogation techniques. The statement also detailed the agency's plans to enact the closure of so-called black sites, pursuant to the same executive order. The release stated that while the CIA retains the authority to detain individuals on a short-term basis:

[The] CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites. I have directed our Agency personnel to take charge of the decommissioning process and have further directed that the contracts for site security be promptly terminated. It is estimated that our taking over site security will result in savings of up to $4 million.
The statement concluded with a pledge that the agency would cooperate fully with any Congressional investigation of CIA interrogation policies, such as the review initiated [press release] by the Senate Select Committee on Intelligence in March.

The new policies were announced in the wake of last month's International Committee of the Red Cross report [JURIST report] that CIA interrogation techniques constituted torture. The Red Cross report led the ACLU to call less than a week later for a special prosecutor [JURIST report] to investigate CIA interrogation techniques. Earlier in March, the Department of Justice acknowledged that the CIA had destroyed 92 videotapes [JURIST report] of terrorist suspect interrogations. A subsequent release of redacted documents [JURIST report] revealed that the destroyed videotapes contained evidence of torture, specifically waterboarding.





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Rights group presses for prompt Guantanamo habeas hearings
Christian Ehret on April 10, 2009 7:57 AM ET

[JURIST] The US has been slow to conduct habeas corpus hearings [JURIST news archive] for Guantanamo Bay [JURIST news archive] detainees despite a June 2008 US Supreme Court ruling in Boumediene v. Bush [opinion, PDF; JURIST report] mandating prompt hearings, Amnesty International (AI) [advocacy website] said in a Thursday report [text, PDF; press release]. The group said that since the ruling, only 12 detainees have received the hearings, and that only one detainee has actually been released since President Barack Obama's January order to close the facility [text, JURIST report] within one year. The group also said that the country has too narrowly construed the court's invalidation of section 7 of the Military Commissions Act [text, PDF] by only allowing detainees to challenge their unlawful detentions and not pursue allegations of unfair treatment, harsh conditions, or secret transfers. The group called for the release of those detainees not facing criminal charges:

Amnesty International considers it unacceptable that any Guantanamo detainee continues to be held without criminal charge followed without further undue delay by a fair trial. It therefore continues to call on the administration to immediately release any detainee not charged with a recognizable criminal offence for trial under fair procedures in existing District Courts.

Amnesty International reiterates that the USA should offer release into the USA to detainees who are not charged, cannot be returned to their country of origin, and for whom there is no immediate, safe, lawful and appropriate third country solution, in order to bring their unlawful detention to an end.
On Tuesday, a federal court of appeals held [JURIST report] that US courts cannot prevent the government from transferring Guantanamo detainees to other countries on the grounds that they might face prosecution or torture in those countries. On Monday, 17 Uighur detainees [JURIST news archive] filed a petition for certiorari [JURIST report] with the US Supreme Court, asking the Court to grant their release. The Department of Justice has declined to repatriate the Uighurs despite Chinese demands [JURIST report] because they could face torture upon their return. In March, US Attorney General Eric Holder [official website] and other top officials from the Obama administration met with leaders [JURIST report] from the European Union (EU) [official website] to discuss plans to transfer detainees from Guantanamo Bay.





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Bolivia congress passes election law after Morales hunger strike
Ximena Marinero on April 10, 2009 7:39 AM ET

[JURIST] The Bolivian National Congress [official website, in Spanish] approved [press release, in Spanish] Thursday the general framework of the electoral law [text, in Spanish] that the new Bolivian constitution [JURIST report] mandated within 60 days of its adoption. Earlier Thursday, Bolivian President Evo Morales [official website; BBC profile] declared himself on hunger strike [YouTube video, in Spanish; AP report] until congress passed the law since the 60-day period decreed in the constitution had lapsed Wednesday. The law, which will regulate election of the congress, president, and vice-president of Bolivia, also seeks to adopt remedial actions for the disenfranchisement of indigenous groups and women from the political system. Under the proposed law, congressional candidate rosters must feature alternating male and female candidates, and Bolivians living outside the country would be entitled to vote. Specific details of the law are yet to be agreed upon as the opposition demands further changes to address their concerns. Senate [official website, in Spanish] opposition members have strongly objected to the proposed 14 congressional seats reserved for indigenous groups and the referendum on autonomous regions. In addition, they demanded a revision of the electoral roll to ensure transparency in the upcoming elections. General elections must now be held on December 6 of this year, and regional elections on April 4, 2010.

In February, Bolivia's new constitution went into effect, after being approved [JURIST reports] by national referendum in January. Other measures adopted by the constitution include land reform and regulations [JURIST report] on single farms to limit acreage to 12,400 and placing economic and social requirements on them.






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Military jury acquits Marine of all charges in Fallujah detainee killing
Jaclyn Belczyk on April 9, 2009 4:06 PM ET

[JURIST] A jury of US Marines acquitted Sgt. Ryan Weemer [JURIST news archive] Thursday of one count of murder and one count of dereliction of duty for his involvement in the shooting death of a detained Iraqi insurgent during a Multi-National Force-Iraq (MNF-Iraq) [official website] November 2004 offensive in Fallujah [JURIST news archive]. Weemer's defense lawyers argued that he acted in self-defense [AP report]. The jury deliberated for more than four hours before reaching their verdict. Weemer would have faced life in prison, had he been convicted of murder.

In July 2007, the Naval Criminal Investigation Service (NCIS) [official website] announced investigations of at least 10 Marines [JURIST report] in connection with the Fallujah offensive after Weemer admitted during a polygraphed job interview with the US Secret Service that he had witnessed indiscriminate killings in Fallujah. Weemer was charged [JURIST report] in March 2008. The charges against Weemer followed December 2007 charges against Marine Sgt. Jermaine Nelson for murder and dereliction of duty, and August 2007 charges [JURIST reports] against former Marine Sgt. Jose Nazario for voluntary manslaughter in connection with the same incident. Nazario was acquitted [JURIST report] by a civilian jury in August. Nelson pleaded not guilty in December and is currently awaiting court-martial proceedings.






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North Korea to revise constitution
Andrew Gilmore on April 9, 2009 3:29 PM ET

[JURIST] Officials in North Korea [JURIST news archive] announced Thursday that the country would revise its constitution [text]. The announcement came during a meeting of the Supreme People's Assembly (SPA) [Reuters backgrounder] attended by the country's leader, Kim Jong-Il. According to the North Korean state media outlet Korea Central News Agency (KCNA) [media website], the measure to "approve and supplement" the constitution was approved by a unanimous vote [KCNA report] of the SPA. The SPA meeting was Kim's first public appearance [BBC report] since August 2008, when he was rumored to have suffered a stroke. The decision to revise the constitution has been interpreted [Yonhap report] as a move to arrange a plan of succession for the leadership of the country.

North Korea recently launched long-range test missile [BBC report], sparking an international outcry and possible UN sanctions. The country has also come under fire for the detention and prosecution [JURIST reports] of two American journalists alleged to have illegally entered North Korea from China. North Korea has been accused of using the captured journalists as pawns [JURIST op-ed] in policy disputes with the US. North Korea has ranked [JURIST report] among the countries with the least protection for press freedoms. The North Korean regime has been the subject of considerable international pressure over its refusal to fully disclose [AP report] its past nuclear activity. The US removed North Korea [WP report] from the State Department's list of terror sponsors [text] in October after former president George W. Bush agreed [JURIST report] to the step following the communist state's handover of a report on its nuclear program to China, one of the countries participating in the so-called Six Party Talks [CFR backgrounder] on the North Korean program. In February 2007, North Korea agreed [JURIST report] to end its nuclear weapons program, shut down and seal any reactors, and completely declare the extent of its nuclear activities in exchange for 50,000 tons of heavy fuel.






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France parliament defeats controversial internet piracy legislation
Andrew Gilmore on April 9, 2009 2:52 PM ET

[JURIST] The French National Assembly [official website, in French] on Thursday defeated a controversial internet piracy bill [materials, in French] that would have cut off internet access for those who repeatedly illegally download copyrighted material. Under the bill, which won preliminary parliamentary approval [JURIST report] last week, any internet user tagged by an ISP as downloading the material would initially receive a warning, followed by up to a one-year ban for the second offense. Users would be responsible for controlling the use of their own connections, and the High Authority for the Distribution of Works and the Protection of Rights on the Internet [materials, in French], referred to as "Hadopi" by local media, would use discretion in determining whether to ban offending users. After receiving initial parliamentary approval for the bill last week, the passage of the measure was apparently seen as such a certainty by politicians that few lawmakers were present to vote [AP report], and the bill was defeated by a vote of 21-15.

The International Federation of the Phonographic Industry [organization website], representing the worldwide recording industry, has welcomed the legislation [press release], while French consumer interest group UFC-Que Choisir [advocacy website] has denounced it [press release, in French] as ineffective. The assembly began considering the bill [JURIST report] in March after it passed through the French senate in October 2008, following in the wake of other nations' attempts to balance protecting copyrighted materials with privacy concerns. In December, the Recording Industry Association of America [association website] dropped a number of lawsuits against illegal file-sharers after some of the defendants counter-sued the association [JURIST reports] for tactics it used to track their internet use. In January 2008, the European Court of Justice [official website] held [judgment; JURIST report] that telecommunication companies operating in Spain were not obligated to disclose the identities of internet users suspected of illegal file sharing. In July 2007, a Belgium court ordered a file sharing website to filter or block access [JURIST report] to users sharing copyrighted material.






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Fiji appeals court declares post-coup military government illegal
Andrew Morgan on April 9, 2009 2:13 PM ET

[JURIST] The Court of Appeal of Fiji ruled Thursday that the country's appointment of a military government following a 2006 coup [JURIST report] was unconstitutional and must be replaced immediately by an interim prime minister until democratic elections can be held. Ousted Fijian prime minister Laisenia Qarase [BBC profile; JURIST news archive] brought the challenge against a November High Court decision finding that current President Ratu Josefa Iloilo [official profile] had the authority under the Fijian constitution [text] to appoint new leaders following Qarase's ouster. The Court of Appeals denied Qarase's request to be reinstated as prime minister, instead urging the president to appoint an independent interim prime minister to dissolve the current parliament and schedule elections. Current Prime Minister Commodore Frank Bainimarama [BBC profile] responded in a televised address to the nation [transcript] that the government has appealed the decision to the Supreme Court, though an application to stay the declarations of the Court of Appeals pending appeal was denied. Bainimarama said that Iloilo will soon announce whether the government will comply with the court's instruction to appoint interim leadership, adding that security forces will "ensure that there will be no disruption to law and order." UN Secretary-General Ban Ki-moon issued a call [statement text] for the nation to respect human rights and the rule of law.

In September, Qarase made additional charges that Bainimarama and others who participated in the December 2006 military coup had committed treason [Fiji Daily Post report] by ousting Qarase's democratically elected government. Later that month, Qarase tried to make a statement [JURIST report] to police regarding the allegations, but they said they would not investigate the charges. Qarase then brought the suit [JURIST report] in October. Less than two days after the coup, a previous interim prime minister installed by the military characterized the coup as "illegal" [JURIST report], but defended it as necessary. Qarase's case was heard in the High Court by a three-judge panel led by Acting Chief Justice Anthony Gates, who was appointed [press release] after Bainimarama suspended former Chief Justice Daniel Fatiaki [JURIST report].






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UK explores granting prisoners voting rights based on sentence length
Devin Montgomery on April 9, 2009 1:56 PM ET

[JURIST] The UK Ministry of Justice (MOJ) [official website] on Wednesday began the second stage of a consultation [text, PDF; press release] on giving certain prisoners the right to vote based on the length of their prison terms, seeking public input on what the maximum allowable term should be. The UK has long banned prisoners from voting [statute text] in elections, but the European Court of Human Rights [official website] ruled [text; JURIST report] in 2005 that the blanket ban violated the right to free elections protected by the European Convention on Human Rights [PDF text]. The MOJ said that even though earlier public input on the issue weighed heavily against granting voting rights to any prisoners, it was bound by the court's decision and must decide to which prisoners to grant the right:

As well as taking account of the results of the first consultation paper, in taking steps to implement the judgment the Government must act in a way compatible with its obligations under the European Convention on Human Rights: so any approach will need to be within the margin of appreciation afforded to signatory states in applying Convention rights. And the Government must take careful account too of the practical implications of enfranchisement for institutions where individuals are held; for the courts; and for the effective delivery of elections.

In the light of these considerations, and given the serious and difficult issues at stake, the Government has reached the preliminary conclusion that to meet the terms of the judgment a limited enfranchisement of convicted prisoners in custody should take place, with eligibility determined on the basis of sentence length.
The MOJ sought additional feedback on whether the maximum allowable sentence should be less than one, two, or four years for a prisoner to retain voting rights, but said that it would not grant the right to those with terms longer than four years. The closing date for the consultation will be September 25, 2009, and the MOJ said it would issue a separate request for input on the degree to which those in psychiatric facilities should have voting rights.

The UK held its first public consultation [JURIST report] on whether prisoners should be granted the right to vote in 2006. At that time, Secretary of State for Constitutional Affairs Lord Chancellor Lord Falconer said that a public consultation on the issue would be the best way to examine the "difficult and complex issues" raised by giving prisoners the right to vote. Other officials express criticism for the allowance, and shadow constitutional affairs secretary Oliver Heald said that a jail sentence inherently involves a loss of certain citizenship rights including the right to vote.





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Europe rights court holds Russia liable for for Chechen abductions
Benjamin Hackman on April 9, 2009 12:53 PM ET

[JURIST] The European Court of Human Rights (ECHR) [official website] on Thursday issued rulings [press release] in four cases ordering Russia to pay a total of €282,000 to compensate six families who claimed government agents abducted their Chechen relatives between 2001 and 2003. In three of the four cases, Dokayev and Others v. Russia, Dzhabrailova v. Russia, and Malsagova and Others v. Russia [judgment texts], masked men clad in camouflage and armed with machine guns abducted five men from their Chechen Republic homes in 2002 and 2003. In the fourth case, Gaziyeva and Others v. Russia [judgment text], masked men abducted a man in February 2001 while he was stopped at a military roadblock. In each case, the court found that Russian state servicemen had abducted the victims, whom the court presumed to be dead. The court held Russia liable in all four cases for violating the disappeared men's rights to life, protection from inhuman treatment, and protection from unacknowledged detention under the European Convention on Human Rights [Articles 2, 3, and 5 text]. In three cases, the ECHR also found that Russia failed to provide an effective remedy during investigations into the disappearances, in violation of Article 13. Under Article 43 of the ECHR treaty, any party to the case has three months to request that a panel of the 17-member Grand Chamber of the Court review the judgments before they become final.

The ECHR has repeatedly ruled against Russia in human-rights cases involving Chechnya. In March, the court ordered Russia [JURIST report] to pay €37,000 to a Russian national for the death of her husband, who was chopping wood when Russian troops killed him in 2000. In December, the court determined [JURIST report] Russia had violated the human rights of six other Chechens who disappeared between 2001 and 2003, and ordered Russia [ECHR news release] to pay the victims' families €320,000. Last May, the court held Russia responsible [JURIST report] for the disappearance of a dozen others from Chechnya in 2002 and 2003.






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Lebanon judge begins transfer of Hariri case to new UN tribunal
Andrew Morgan on April 9, 2009 12:07 PM ET

[JURIST] A Lebanese judge on Wednesday ordered the transfer of documents related to the assassination of former Lebanese Prime Minister Rafik Hariri [JURIST news archive] to a UN tribunal created to investigate and try suspects in the killing. Judge Sakr Sakr's order [AFP report] comes in response to a request [order, PDF; JURIST report] issued last month by the UN Special Tribunal for Lebanon (STL) [official website] that Lebanese authorities "defer to the Tribunal's competence" by turning over the results of the Lebanese investigation and a list of all persons detained in connection with the 2005 assassination. Sakr's order also lifts arrest warrants for four generals held since 2005 in connection with the case, though they will remain in jail in Lebanon pending an STL decision. STL registrar Robin Vincent [official profile, PDF] said in February that it plans to ask the Lebanese government to transfer the generals [Daily Star report; JURIST report] to the tribunal. Under UN Security Council Resolution 1757 [text, PDF; JURIST report], which established the tribunal, STL assumed exclusive jurisdiction [Daily Star report] over the case after making the request.

In March 2008, lead prosecutor Daniel Bellemare [Ya Libnan profile] said he believed a criminal network was behind the assassination [JURIST report]. The investigation into the assassination has been extended past its original anticipated end date and expanded [JURIST reports] to cover other assassinations in the country. Several reports from the International Independent Investigation Commission (IIIC) [authorizing resolution; UN materials], also headed by Bellemare, have implicated Syrian officials [JURIST report] in Hariri's death.






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South Africa congressional leader Zuma calls for review of high court's authority
Devin Montgomery on April 9, 2009 11:13 AM ET

[JURIST] South Africa's African National Congress (ANC) [official website] leader Jacob Zuma [BBC profile; JURIST news archive] on Wednesday called on the Judicial Service Commission [governing statute text] to conduct a review of the country's Constitutional Court [official website], saying the court has too much power and had abused its authority. Zuma also criticized the country's judiciary and prosecutors for pursuing corruption charges [JURIST report] against him, in what he said was an attempt to undermine his leadership [Pretoria News report] of the ANC. Earlier this week, the National Prosecuting Authority of South Africa (NPA) [official website] decided to drop the charges [JURIST report] against Zuma, but opponents have criticized the move [Star report]. A spokesman for the Congress of the People [party website] party said that if Zuma is able to weaken the Constitutional Court, it would not be able restrain his use of power should he become president in upcoming elections.

The NPA's decision to drop the charges against Zuma came at the end of a long legal battle. In January, the Supreme Court of Appeal of South Africa [official website] reinstated the charges against Zuma, which had been invalidated [JURIST reports] in September. In July, the Constitutional Court rejected a motion [JURIST report] by Zuma to exclude evidence from the corruption trial. Zuma had argued [JURIST report] that evidence seized in 2005 raids by the Directorate of Special Investigations should be thrown out because the raids violated his rights to privacy and a fair trial. The court upheld the warrants used in the raids, confirming a November 2007 decision [JURIST report] by the Supreme Court of Appeal. Zuma was first charged with corruption in 2005, but those charges were later dismissed [JURIST report] because prosecutors failed to follow proper procedures.






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Federal judge denies motion to dismiss apartheid lawsuits against US companies
Steve Czajkowski on April 9, 2009 11:01 AM ET

[JURIST] A judge for the US District Court for the Southern District of New York (SDNY) [official website] on Wednesday denied [opinion, PDF] in part a motion to dismiss lawsuits against some companies accused of assisting South Africa's apartheid-era [JURIST news archive] government can go forward. The lawsuit, brought by a class of thousands of South African plaintiffs against several companies under the Alien Tort Claims Act (ATCA) [text], alleges the companies were complicit in the oppression of the black majority by doing business with the country during apartheid. In denying defendants' motion to dismiss, Judge Shira Scheindlin rejected [AP report] arguments by the US and South African governments that the lawsuits could harm relations between the two countries. All claims against IBM, Ford Motor Co., Daimler, General Motors Corp., and Rheinmetall Group [corporate websites] were not dismissed [BBC news report] based on arguments that the companies knew their products would be used to support apartheid. Scheindlin also dismissed claims against certain companies for "merely doing business with the apartheid government of South Africa."

The case was returned to the SDNY after the US Supreme Court [official website; JURIST news archive] affirmed [text, PDF] a Second Circuit judgment [opinion, PDF] in May on the rare grounds that it lacked a quorum [JURIST report] due to four recusals. The Second Circuit's decision allowed the ATCA action to go forward to trial [JURIST report], but had dismissed additional claims filed under the Torture Victims Protection Act [text]. The Supreme Court's recusals were statutorily required [text] because several justices had financial conflicts, but raised fairness concerns and brought about discussion as to possible effects on future cases.






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UN, Cambodia officials fail to agree on genocide tribunal corruption monitoring
Steve Czajkowski on April 9, 2009 9:48 AM ET

[JURIST] UN and Cambodian officials failed to reach an agreement Wednesday on a system for monitoring corruption issues in the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. UN assistant secretary-general for legal affairs Peter Taksoe-Jensen presented a proposal [UN News Centre report] to Cambodian Deputy Prime Minister Sok An [official profile], but no agreement has been reached [Phnom Penh Post report]. Taksoe-Jensen had meet with Sok An, who also chairs the Royal Government Task Force on the Khmer Rouge Trials [official website], during the past week to discuss his system which would allow ECCC personnel to deliver complaints to the ethics monitor of their choosing without the fear of reprisal. In presenting the proposed anti-corruption mechanism, Taksoe-Jensen stressed the need to deal with allegations of corruption in the ECCC as the tribunal began [JURIST report] its first substantive trial of a former Khmer Rouge [BBC backgrounder; JURIST news archive] leader last month. Taksoe-Jensen has left a proposal for Sok to consider, saying he believed they were close to an agreement but that further negotiations would not continue.

The ECCC was intially created by Cambodia under a 2001 law [amended text, PDF] to investigate and try surviving Khmer Rouge officials. The ECCC plans to try as many as eight suspects [JURIST report] for their roles in the Khmer Rouge, but rights groups have warned that the trials could face credibility and corruption [JURIST reports] problems. Some believe that such allegations of corruption are a leading cause of the ECCC's extreme financial difficulties, discouraging potential donors from contributing funds. Despite Japan's pledge [JURIST report] of an additional $21 million in January, it is feared that the court may go bankrupt. The ECCC announced last June that it planned to end its operations [JURIST report] a year early because of limited funding.






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Eleventh Circuit upholds Noriega extradition to France
Ximena Marinero on April 9, 2009 7:17 AM ET

[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] upheld [text, PDF] Wednesday a lower court decision denying the habeas corpus petition of former Panamanian military leader Manuel Noriega [BBC backgrounder, JURIST news archive] and authorizing his extradition to France. The court held that Noriega was precluded from invoking the Geneva