[JURIST] The US Court of Appeals for the Ninth Circuit on Monday ruled against [opinion, PDF] a Humanitarian Law Project (HLP) [advocacy website] challenge to former President George W. Bush's Executive Order 13224 [Treasury materials], which prohibits unlicensed US groups and individuals from providing services to certain terrorist organizations designated by the government. The HLP wanted to aid the Kurdistan Worker’s Party (PKK) and the Liberation Tigers of Tamil Elam (LTTE) [CFR backgrounders], but feared being designated a terrorist organization itself. The HLP then challenged the Executive Order and its supporting regulations, the International Emergency Economic Powers Act (IEEPA) and the United Nations Participation Act (UNPA) [texts, PDF] on First and Fifth Amendment [text] grounds. The Ninth Circuit affirmed the lower court's holding that the HLP lacked standing despite its self-censorship, as well as its ruling that the Order's ban on "services" to terrorist organizations was not unconstitutionally vague. Judge Pregerson dissented in part, commenting,

no case holds that the standing analysis used in the First Amendment context requires that the challenged statute must on its face implicate First Amendment rights....The government [asserts] that the term “services” does not reach independent advocacy. I doubt whether such expressed intentions and representations...could assuage the reasonable fears of entities who stand to have all their assets frozen.

[JURIST] A US military judge ruled Monday that lawyers for Guantanamo Bay detainee and accused 9/11 co-conspirator Ramzi bin al-Shibh [JURIST news archives] will not be allowed to tour secret CIA prisons, known as "black sites" where al-Shibh was detained, the Miami Herald reported [text] Tuesday. Al-Shibh's lawyers had sought access to the sites in order to determine whether he is competent to stand trial. Judge Stephen Henley denied the request, ruling that the sites have likely changed since 2006, rendering an inspection useless. Henley set a pre-trial hearing date for September 22 to determine al-Shibh's competency.

The ruling comes weeks after Henley ruled that al-Shibh's lawyers will not be made aware of what interrogation techniques were used on him [JURIST report] by the CIA prior to his transfer to Guantanamo Bay. Al-Shibh's military defense lawyer, Navy Commander Suzanne Lachelier, had argued that interrogation details were relevant to determining whether bin al-Shibh suffers from post-traumatic stress disorder (PTSD) [NIMH backgrounder] or a permanent psychological disability, which would in turn affect his competency to stand trial. Henley found that the details of al-Shibh's interrogation were not relevant to determining his current mental competency but would risk disclosure of classified information. Last month, lawyers for terrorism suspect Ahmed Ghailani [GlobalSecurity backgrounder; JURIST news archive], who is facing a civilian trial, requested access to CIA black sites [JURIST report]. There has been no ruling on that request.

[JURIST] Chief prosecutor at the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] on Monday filed arguments [text, PDF] against releasing former Democratic Republic of Congo (DCR) [BBC backgrounder] rebel leader Jean Pierre Bemba [ICC materials; JURIST news archive]. The ICC ordered [JURIST report] Bemba's conditional release earlier this month, a decision which Moreno-Ocampo immediately appealed [press release]. In court documents filed Monday, Moreno-Ocampo argued that Bemba should remain in custody until the end of his trial, claiming:

The Decision finds that a substantial change of circumstances now warrants the release of the Accused. In fact, contrary to the Single Judge's conclusions, there has been no change of circumstances in the present case. Most of the circumstances cited are pre-existing and have been cited previously as either grounds for continued detention or irrelevant to an application for release. The only significant intervening factor, the issuance of the decision confirming the charges against the Accused, confirms and increases the risks posed by the Accused if released. The Single Judge's decision is thus error.

[JURIST] A judge for the US District Court for the Central District Court of California [official website] dismissed [opinion, PDF] a lawsuit [case materials] challenging the Defense of Marriage Act (DOMA) [text] on judisdictional grounds Tuesday. The suit, filed by Arthur Smelt and Christopher Hammer, two men who were married in California, alleges that DOMA violates the Constitution's Full Faith and Credit Clause, their constitutional right to travel, the Due Process Clause of the Fifth Amendment, their right to free speech, their right to privacy, and their rights under the Ninth Amendment [texts]. The judge ruled that the court lacked subject matter jurisdiction to hear the case because, although the case was removed [28 USC § 1442 text] from state court to federal court, the federal court's jurisdiction is only as great as that of the state court in which the case was originally filed. Since an individual cannot sue the federal government in a state court without the federal government's permission, the state court lacked subject matter jurisdiction and therefore the federal court did as well, the judge reasoned. The US Department of Justice [official website] opposed the suit [JURIST report] despite its belief that DOMA is discriminatory, stating that the DOJ could not choose only to enforce the laws with which it agreed. The couple is expected to refile [AP report] the case in federal court, which will then have subject matter jurisdiction.

Last month, Massachusetts Attorney General Martha Coakley [official profile] filed a suit challenging [JURIST report] DOMA on the grounds that it interferes with the state's right to define and regulate marriage. In March, a group of Massachusetts plaintiffs who are or have been married under the state's same-sex marriage law filed a similar lawsuit [JURIST report] challenging DOMA. Although Maine became the fifth state to allow same-sex marriages [JURIST report] in May, the Stand for Marriage Maine coalition [advocacy website] announced last month that they have collected more than the requisite 55,087 signatures [press release] needed to put a veto on the November ballot, allowing voters to decide on the law. Also in July, a Washington, DC law took effect [JURIST report] that recognizes same-sex marriages performed in other states or jurisdictions. Currently, New Hampshire, Vermont, Massachusetts, Connecticut and Iowa [JURIST reports] all allow same-sex marriage.

[JURIST] The US will continue its practice of sending terror detainees to third countries for interrogation with increased oversight to prevent torture, the New York Times [media website] reported [text] Monday. The practice, known as rendition [JURIST news archive], received worldwide attention during the Bush administration when many detainees alleged they had been tortured by the governments of the countries to which they had been transferred. It is not clear how the program will be overseen, but the Department of State [official website] will reportedly monitor the process. A Department of Justice (DOJ) [official website] study recommended [DOJ press release; JURIST report] to Obama on Monday that the US increase oversight in its transfer of detainees.

The CIA's rendition program has been the source of much controversy and litigation. Last month, UK human rights group Reprieve [advocacy website] announced that it is suing the British government [JURIST report] over the rendition of Mohammed Saad Iqbal Madni [advocacy profile] from Indonesia to Egypt, where it says he was tortured. The group alleges that the UK allowed the US rendition flight of Madni to stop on the British island territory of Diego Garcia [GlobalSecurity backgrounder], despite government claims that the island was not part of the US's rendition program. In April, the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that the state secrets privilege [JURIST news archive] does not bar a lawsuit against a company that allegedly provided logistical support for CIA rendition flights. The DOJ has sought to have that case reheard en banc [JURIST report]. In February, CIA Director Leon Panetta announced [JURIST report] that the US would continue to use rendition, but would do so with oversight so as to avoid the problems of extraordinary rendition that occurred during the Bush administration.

[JURIST] Two former Pennsylvania judges on Monday withdrew their guilty pleas [JURIST report] on charges of accepting more than $2.6 million in kickbacks for sentencing teenagers to two private juvenile detention facilities in which they had a financial interest. Former Luzerne County Court of Common Pleas [official website] judges Mark Ciavarella and Michael Conahan pleaded guilty in February to federal corruption charges [criminal information, PDF] of honest services fraud and tax fraud. Last month, Judge Edwin Kosik of the US District Court for the Middle District of Pennsylvania [official website] rejected their plea agreements after finding that the men did not accept responsibility and that the prison sentences were too lenient [NYT report], prompting the two former judges to file a motion for their reinstatement. Kosik refused to reinstate the plea agreements Monday, causing the former judges to withdraw their pleas and clearing the way for a trial.

In the wake of this corruption scandal, the Supreme Court of Pennsylvania [official website] ordered hundreds of juvenile convictions to be overturned [JURIST report] and records to be expunged without hearing. Judicial corruption cases in the US are relatively rare but not unprecedented. In the 1980s, 17 Illinois judges were indicted after the FBI and the DOJ joined forces in Operation Graylord [FBI backgrounder], aimed at judicial corruption in Cook County, Illinois. Fourteen judges were eventually convicted [list]. The first US federal judge convicted of corruption was Martin Manton [NYT backgrounder] of the US Court of Appeals for the Second Circuit, who sold his vote in various patent cases after suffering financial hardship in the Great Depression. His conviction was upheld [NYT reports, PDF] by the Second Circuit itself in 1939 and he spent two years in federal penitentiary.

[JURIST] Chinese officials on Tuesday denied a Monday state media report that more than 200 people detained during last month's violent demonstrations in China's Xinjiang province will go on trial [JURIST report] this week. State-run China Daily [media website] reported Monday that the trials would take place in the Intermediate People's Court in Urumqi, the capital of the primarily Muslim region, and that the defendants would face charges ranging from vandalism to murder. A Xinjiang government spokesperson denied that report Tuesday, saying that the number of people facing charges was closer to 80, confirming earlier reports [JURIST report], and that no trial would begin this week. Xinjiang Prosecutor Utiku'er Abudrehman has said that 718 people, both Han Chinese and ethnic minority Uighur, have been detained [Xinhua report] in connection with the riots as a result of police investigations of damaged stores, homes, and vehicles, as well as photographs and videos of the riots.

In early July, violence broke out [NYT report] between Han Chinese and Uighur residents in Xinjiang's regional capital. After two days of rioting, UN High Commissioner for Human Rights Navi Pillay [official profile] called for restraint [JURIST report] from all sides and a respect for due process in arrests and prosecutions. The Chinese government claims [Xinhua report] that the majority of the 197 killed and 1,600 injured in the violence were Han residents killed by protesters, although the Uighur advocacy groups maintain that many protesters were killed by authorities but not included in the official death toll. Chinese officials have acknowledged [JURIST report] that 12 protesters were killed by police. The Uighur population, which is Muslim, is opposed [BBC backgrounder] to China's restrictive bans on religious practice, and say that the recent influx of Han Chinese has disenfranchised non-Chinese-speaking Uighurs.

[JURIST] The Canadian federal government said Tuesday that it will appeal to the Supreme Court of Canada a Federal Court of Appeal [official websites] decision [judgment, PDF; JURIST report] ordering the government to press for the release and return of Canadian Omar Khadr [DOD materials; JURIST news archive] from the Guantanamo military base in Cuba. The government has filed a motion to stay the lower court ruling pending appeal, and then the highest court will have to decide whether to review the case. The government has maintained its position that due to the serious nature of the charges against Khadr, he should face US military proceedings [CBC report].

Earlier this month, the president of the Canadian Bar Association urged [JURIST report] the Canadian government to seek the repatriation of Khadr, days after the Federal Court of Appeal upheld an April lower court ruling [judgment, PDF, JURIST report] ordering the Canadian government to advocate for his return. The government had appealed the April ruling asserting that the lower court had erred in holding that by not pressing for his release Canadian officials had violated Khadr's rights to "life, liberty, and security" under Section 7 of the Canadian Charter of Rights and Freedoms (Charter) [text]. 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.

[JURIST] China's National People's Congress (NPC) [official website, in Chinese] on Monday considered a draft bill [text, in Chinese] that would allow the People's Armed Police Force (PAPF) to respond to riots. The proposed legislation would also allow the PAPF to respond [Xinhua report] to terrorist attacks and other social emergencies. A detailed protocol for deploying the PAPF would be determined later by the State Council and the Central Military Commission. The draft bill also includes provisions to prevent the PAPF from illegally detaining or searching people, in response to lawmakers' objections after the bill's first reading. Monday's session was the bill's second reading, and it could be voted on [China Daily report] as early as Thursday. This would be the country's first law on armed police.

The proposed law comes as Chinese authorities prepare for the upcoming 60th anniversary of Communist rule, which will take place in October. Beijing has reportedly enhanced security [Xinhua report] in response to fears of violent protests or terrorist attacks. The proposed law is also largely in response to the recent riots [JURIST news archive] between ethnic minority Uighurs and Han Chinese in the Xinjiang regional capital of Urumqi. Earlier this month, Chinese authorities announced [JURIST report] charges of murder, intentional injury, arson, and robbery against 83 people accused of participating in violent demonstrations. Xinjiang Prosecutor Utiku'er Abudrehman has said that 718 people, both Han Chinese and ethnic minority Uighur, are detained [Xinhua report] in connection with the riots. The Chinese government claims [Xinhua report] that the majority of the 197 killed and 1,600 injured in the violence were Han residents killed by protesters, although Uighur advocacy groups maintain that many protesters were killed by authorities but not included in the official death toll. Chinese officials have acknowledged [JURIST report] that 12 protesters were killed by police.

8/27/09: The law was passed [China Daily report after its second reading Thursday.