[JURIST] A coalition of progressive organizations Monday filed disciplinary complaints with five state bar associations seeking the disbarment [materials] of 12 former US government officials associated with the legal rationales behind the Bush administration's use of enhanced interrogation techniques [JURIST news archive]. Complaints filed by the Velvet Revolution [advocacy website] with the bar associations of New York, Pennsylvania, California, Texas, and the District of Columbia allege that former attorneys general John Ashcroft, Alberto Gonzales and Michael Mukasey [JURIST news archives], former Office of Legal Council [official website] lawyers John Yoo and Jay Bybee, former vice presidential chief of staff David Addington [JURIST news archives], former Pentagon official Douglas Feith [personal website], and other government officials violated the Rules of Professional Conduct by advocating the use of torture and should be disbarred as a result. The group said [AP video] that the recent release of CIA memos [JURIST report] authorizing the use of enhanced interrogation techniques "clearly demonstrate[s] that these attorneys conspired to violate laws against torture and that their actions resulted in torture and death."

Last week former JFK speechwriter Ted Sorensen told [JURIST report] an audience at the University of Nebraska College of Law [official website] that the lawyers from the Department of Justice (DOJ) [official website] who had authorized the use of enhanced interrogation techniques had "disgraced not only their country but their profession." Last month, Senator Patrick Leahy (D-VT) [official profile; JURIST news archive], Chairman of the Senate Judiciary Committee [official website] renewed his call [JURIST report] for the formation of a non-partisan "truth commission" to investigate torture allegations. Also last month, UN special rapporteur on torture Manfred Nowak [official profile, DOC] insisted that under international law the US must prosecute [JURIST report] DOJ lawyers who drafted the memos. President Barack Obama has said that he would not rule out the possibility of prosecuting [transcript; JURIST report] lawyers who authored 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].

[JURIST] Pro-democracy advocate and Nobel Laureate Aung San Suu Kyi [BBC profile; JURIST news archive] went on trial Monday in Myanmar for violating the terms of her house arrest. Suu Kyi allegedly violated these terms earlier this month by allowing an American man who swam across a lake [NYT report] to stay with her and faces up to five years imprisonment. Her arrest was controversial and highly criticized [JURIST report] by the international community. Myanmar riot police surrounded Insein prison [BBC backgrounder] to protect it from protesters. One of Suu Kyi's laywers told the media [AP report] that the court rejected a request to open the trial up to the media and the public for security reasons. Human Rights Watch (HRW) [advocacy website] condemned Myanmar's actions, calling the charges "trumped up" [HRW report] and seeking international support for her release.

Suu Kyi, the leader of the National League for Democracy, has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text]. In 2007, the military government had implied that she might be released [JURIST report] after the country's new constitution was approved. In May 2008, the junta announced that Myanmar's draft constitution [JURIST news archive] had been overwhelmingly approved [JURIST report] but the ruling junta at the same time extended Suu Kyi's house arrest for another year [JURIST report].

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Ashcroft v. Iqbal [JURIST report] that a complaint filed against former US Attorney General John Ashcroft, FBI Director Robert Mueller [official profiles] and other officials by a terrorism suspect failed to adequately state a claim under Federal Rule of Civil Procedure 8 [text] and the Court's 2007 decision in Bell Atlantic Corp. v. Twombly [Duke Law case backgrounder; JURIST report]. Pakistani national Javaid Iqbal, captured during a terrorism "sweep," alleged mistreatment by the FBI based on religious and ethnic bias during his detention in a Brooklyn maximum security jail, and that Ashcroft and Meuller became complicit in the discrimination when they approved the policy that resulted in his detention.

Without ruling on the substance of the allegations, the Court remanded the case to the Second Circuit Court of appeals [official website] so that it may decide whether to allow Iqbal an opportunity to amend his complaint. The Court also declined to rule on Ashcroft and Mueller's assertion of qualified immunity, except to note that the denial of a motion to dismiss based on qualified immunity "can fall within the narrow class of appealable orders despite 'the absence of a final judgment'" and that the Second Circuit therefore had proper interlocutory jurisdiction over the case. Justice Anthony Kennedy delivered the opinion of the Court. Souter, joined by Stevens, Ginsburg, and Breyer, dissented.

[JURIST] Five Somalians suspected of piracy [JURIST news archive] went on trial Monday before a Dutch court in Rotterdam. The men are accused of attempting to hijack [NRC Handelsblad report] a Dutch Antilles freighter in the Gulf of Aden in January. The Danish navy seized the Somalians in February and handed them over to Dutch authorities. While at least one of the men has admitted an intention to hijack the ship, he and others maintain that they abandoned the notion of hijacking it after experiencing engine problems and that the crew of the freighter attacked them first, setting fire to their boat with a molotov cocktail. One of the accused admits his guilt and is seeking the court's sympathy for what his lawyer calls an act of despair. All of the accused claim to be poor fishermen who were acting out of poverty and debt due to the poor financial and political situation in Somalia. The prosecutor responded [DutchNews report] that, regardless of the country's poverty, not every Somalian is resorting to piracy.

In April, a US Coast Guard chief called for the enforcement of international piracy laws [JURIST report], citing the importance of entering Somali waters to combat the problem. 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 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].

[JURIST] The England and Wales Court of Appeal (Civil Division) on Monday ruled [judgment text] that the European Convention on Human Rights (ECHR) [text] applies to UK troops serving abroad. The court found that the UK's obligation under the Human Rights Act of 1998 [text], which implemented the ECHR in the UK, extends in some cases beyond territorial jurisdiction, including foreign service by military personnel. Writing for the court, Sir Anthony Clarke noted that Ministry of Defence (MOD) [official website] did not challenge the exercise of jurisdiction when soldiers were on base, but wrote:

it seems to us to make no sense to hold that there is a distinction between a person inside and outside premises controlled by the UK, whether he or she is a consul or a soldier. The distinction raises questions such as whether the soldier or consul is protected in a vehicle or an ambulance. If in a hospital, why not in an ambulance? If in a British base or consulate, why not in a British army vehicle? If in a vehicle, why not when the soldier gets out of the vehicle?

[JURIST] The US Supreme Court [official website; JURIST news archive] Monday ruled [opinion, PDF] 7-2 in AT&T Corp. v. Hulteen [Cornell LII backgrounder; JURIST report] that companies do not violate the Pregnancy Discrimination Act (PDA) [EEOC backgrounder] by failing to award employees credit for maternity leave taken before the act's effective date. The Court found that although the method of calculating benefits used by AT&T would be prohibited on gender discrimination grounds if enacted today, the act does not apply retroactively and therefore overruled a 2007 decision [opinion, PDF] by Ninth Circuit Court of Appeals [official website], which found that the pension plan was discriminatory. The Court also rejected Hulteen's claim that the payment of benefits accrued under the pre-PDA plan marks a new instance of discrimination under the Lilly Ledbetter Fair Pay Act of 2009 [S.181 materials; JURIST report], finding that, because the initial decision was not itself discriminatory, Hulteen has not been "affected by application of a discriminatory compensation decision or other practice" within the meaning of the statute. Justice David Souter delivered the Court's opinion. Justice John Paul Stevens concurred. Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, dissented, finding that AT&T "committed a current violation of Title VII when, post-PDA,it did not totally discontinue reliance upon a pension calculation premised on the notion that pregnancy-based classifications display no gender bias."

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in four cases. In Black v. United States [docket; cert. petition, PDF], the Court will consider the appeal of former media mogul Conrad Black [CBC profile; JURIST news archive] to determine whether the "honest services" clause of 18 USC § 1346 [text] applies in cases where there is no finding that the defendant or defendants "reasonably contemplated identifiable economic harm" in cases of mail and wire fraud under § 1341 [text]. The US Court of Appeals for the Seventh Circuit [official website] held that § 1346 may be applied in a private setting [opinion, PDF; JURIST report] regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim, rejecting Black's appeal. The courts of appeals are divided on the issue. Black was convicted of fraud and obstruction of justice in 2007, sentenced to 78 months in prison [JURIST reports], and ordered to pay $125,000 and forfeit another $1 million.

In Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board [docket; cert. petition, PDF], the Court will consider whether the Sarbanes-Oxley Act of 2002 [GPO materials] violates Constitutional separation of powers by affording members of the Public Company Accounting Oversight Board (PCAOB) [organization website] executive power while removing any presidential authority to control the exercise of such power. The law was passed to reform business practices [NYT report] and prevent corporate fraud by overseeing the accounting industry and punishing corrupt auditors. The US Court of Appeals for the District of Columbia [official website] held that the Act is constitutional [opinion, PDF] because Congress is able to restrict the president's removal power in any way it "deems best for the public interest" and because the constitutional authority to appoint implies the authority to limit, restrict, and regulate the removal of such appointments.

In Lewis v. City of Chicago [docket; cert. petition, PDF], the Court will consider whether the 300-day filing period for an equal employment opportunity complaint under Title VII of the Civil Rights Act of 1964 [text] begins after the announcement of the discriminatory practice or after the employer's use of the discriminatory practice. In this case, African-Americans seeking employment as firefighters in Chicago sued the city over an allegedly disparate racial impact resulting from a written test administered to job applicants. The original complaint was filed 420 days after the notice of the test results were sent out but within 300 days of the hiring of applicants based on the test results. The US Court of Appeals for the Second Circuit [official website] ruled in favor of the city of Chicago [opinion, PDF], holding that the "statute of limitations begins to run upon injury (or discovery of the injury) and is not restarted by subsequent injuries." The plaintiffs contend that the hiring of applicants by reliance on the test results constituted a new violation that allows their complaint to fall within the statute of limitations.

In Beard v. Kindler [docket; cert. petition, PDF], the Court will consider if a state procedural rule is inadequate under the adequate state grounds doctrine because the rule is discretionary rather than mandatory. The adequate state grounds doctrine bars Supreme Court jurisdiction of cases decided by a state court based on both federal and non-federal law if the state ground for the decision is adequate to support the judgment and is independent of federal law. The Pennsylvania courts applied the state's fugitive forfeiture rule and concluded that Kindler waived his right to seek appellate review, dismissing his appeal without reaching the merits of his claims. The US Court of Appeals for the Third Circuit [official website] affirmed the district court's grant of federal habeas relief [opinion, PDF], rejecting the argument that Pennsylvania's fugitive waiver rule was an adequate and independent state ground for precluding such relief.

[JURIST] The US Department of Justice (DOJ) [official website] on Friday reported to Congress [text, PDF] that 2,083 wiretap and search requests for investigating terrorism suspects were granted in 2008 through the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive], a decline from 2,370 in 2007. This was the first decrease in warrants since the 9/11 terror attacks [JURIST news archive] in 2001. The Foreign Intelligence Surveillance Court (FISC) [official backgrounder] approves applications for electronic and physical surveillance warrants in regards to foreign powers or agents thereof and, in 2008, denied only one warrant application and modified two. FISA is aimed at addressing the government's need to obtain foreign intelligence information in light of privacy concerns for citizens. Obtainment of such a warrant requires probable cause to believe that a person, acting for or on behalf of a foreign power, is engaged in activities that involve or may involve a violation of criminal law. This is a lower standard [text, PDF] than is needed in ordinary criminal investigations.

In January, the Foreign Intelligence Surveillance Court of Review made public [JURIST report] a ruling [opinion, PDF] from August 2008 that upheld the Protect America Act [text], a 2007 amendment to FISA that allows warrantless wiretaps of international phone and e-mail communications. After the amendment, warrants are still required to monitor purely domestic communications. In November, Judge Henry Kennedy of the US District Court for the District of Columbia [official website] ordered [order, PDF] the DOJ to release legal memoranda [JURIST report] relating to the National Security Agency (NSA) [official website] warrantless domestic surveillance program [JURIST news archive]. In July, the Senate voted to approve a bill amending FISA to grant retroactive immunity [JURIST report] to telecommunications companies participating in the NSA warrantless surveillance program.

[JURIST] A federal judge on Friday dismissed [opinion, PDF] a lawsuit against the Department of Homeland Security (DHS) [official website] that sought to block construction of a fence along the US-Mexico border. The Texas Border Coalition [advocacy website], a group of Texan officials and business owners, filed suit [JURIST report] last year challenging the condemnation of land for the construction of the fence and the compensation paid to landowners for access to conduct surveys under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [text], the Administrative Procedure Act [text, PDF], and the Due Process Clause of the Fifth Amendment [text]. Judge Reggie Walton of the US District Court for the District of Columbia [official website] found that the Coalition did not have standing to bring the suit because it was "unclear from the complaint whether any of the property owned by the plaintiff's members will actually be condemned," saying that:

It would make little procedural sense, and, indeed, thwart congressional will, to allow the plaintiff's members to preemptively challenge an anticipated condemnation when the Department's decision to pursue this course has not yet been rendered.

[JURIST] US Senate Minority Leader Mitch McConnell (R-KY) [official website] said Sunday that he wants the Supreme Court [official website] nominee who will replace retiring Justice David Souter [JURIST report] to be someone who will apply the law without bias. Speaking on Fox News Sunday, McConnell said [transcript]:

what we are looking for, we meaning Republicans in the Senate ... is a nominee who will apply the law without partiality. Each federal judge takes an oath to apply the law to both the rich and the poor. Their personal views ought to be irrelevant. I think Chief Justice Roberts had it right during his confirmation hearings. He said the - a judge ought to be like an umpire - call the balls and strikes but don’t make the rules. That's the kind of individual we're looking for. We know it will be someone of the political left. But a number of leftist judges have been able to put aside their personal views and call it like they see it.