[JURIST] Judge Royce Lambeth of the US District Court for the District of Columbia [official website] on Wednesday released a 191-page opinion [text, PDF] expressing frustration with the inability of victims of Iranian-sponsored terrorism to receive their court-ordered judgments. In the opinion, Lambeth discussed the more than 1,000 plaintiffs who have received awards totaling over $9 billion, and the lack of support of these awards by the executive branch, which signs into law bills authorizing suit against state sponsors of terror while it directs the Department of Justice to fight writs of attachment of Iranian assets. Much of Lambeth's opinion focused on the 2008 National Defense Appropriations Act (NDAA) [text, PDF], which amended the Foreign Sovereign Immunities Act (FSIA) [text] to provide additional remedies to plaintiffs, including the ability to claim punitive damages. Lambeth also addressed the applicability of the new State Sponsor of Terror exception to individuals who had filed suit under the previous iteration of the FSIA. In summarizing his position, Lambeth wrote:

the reforms implemented as part of § 1083 of the 2008 NDAA last year — which are just now being implemented in individual cases here today — will not, in this Court's humble opinion, lend much support to the cause of these victims or their long march toward justice. These most recent reforms, like others before them, are premised on the same failed private-litigation model that has, in effect, doomed these actions from the start. These terrorism cases ... are likely to face the same obstacles discussed in this opinion, such as the Algiers Accords, limited assets to satisfy judgments, conflicting laws and regulations, and the President’s foreign policy prerogative, among others.

These are intractable problems that are more often political, rather than jurisprudential, and so it seems that the new [FSIA amendment], although well intentioned, is destined to prolong and perhaps aggravate the ways in which the same intractable issues have continuously foiled plaintiffs in these cases time and again

[JURIST] The Criminal Chamber of the Peruvian Supreme Court on Wednesday sentenced [materials, in Spanish] former president Alberto Fujimori [BBC profile; JURIST news archive] to six years in prison for multiple counts of illegal wiretapping and bribery. Fujimori is to serve his sentence concurrently with the sentences from his three other convictions. In the fourth and final trial pending against him, former Fujimori was also ordered to pay 24,060,216 nuevos soles (USD $8.3 million) to the state and 107,042 nuevos soles (USD $37,000) to each of the 28 people who were wiretapped. Fujimori pleaded guilty [JURIST report] on Monday to the charges of ordering former intelligence director Vladimiro Montesino [BBC profile] to use government funds to secretly wiretap politicians, journalists, and other prominent Peruvians and to bribe [Andina report] congressmen and journalists to join his party and to support his 2000 re-election campaign. Fujimori accepted the charges to shorten his trial so no hearings would be held and to receive a reduced sentence of six years rather than the eight years requested by the prosecution. Both parties have said that they intend to appeal [IPS report, in Spanish]. Fujimori argues that his conviction is void despite his guilty plea, while the prosecution objects to the final sentence reduction.

In July, Fujimori was convicted and sentenced [JURIST report] to seven-and-a-half years in prison for paying former Peruvian intelligence director Montesino $15 million to resign in 2000 in the midst of the scandal that ultimately resulted in Fujimori's arrest [JURIST report] in 2005. Fujimori was convicted [JURIST report] in April of committing human rights abuses for approving multiple killings during his 1990-2000 presidency. The conviction and subsequent sentencing, which put Fujimori in prison for 25 years, was met with widespread approval [JURIST report] from the current government and human rights organization, despite Fujimori's planned appeal. In 2007, Fujimori was convicted [JURIST report] of ordering a warrantless search in 2000 on the apartment of Montesino's wife. Prosecutors alleged that the search was intended to uncover and confiscate documents that might incriminate Fujimori. Similar to the present charges, Fujimori admitted to the facts, but denied any wrongdoing.

[JURIST] Georgia violated international law when it shelled the South Ossetian capital of Tskhinvali in August 2008, according to a report [materials] released Wednesday by a European Union-backed commission. The Independent International Fact-Finding Mission on the Conflict in Georgia (IIFFMCG) [official website] concluded that "it is not possible to accept" that the armed response by Georgian forces to the buildup of Russian troops near the breakaway region was "necessary and proportionate" to protect Georgian villages, and that the response by South Ossetian forces was therefore a legitimate act of self-defense. The IIFFMCG also found that military action against Russian forces was not justified because the commission could not substantiate Georgian claims of a large-scale Russian military presence in the region prior to the Georgian offensive. The report found that although the shelling of Tskhinvali was the beginning of armed conflict, "it was only the culminating point of a long period of increasing tensions, provocations and incidents" between the two countries. Echoing an August 2008 denunciation [JURIST report] from the North Atlantic Treaty Organization [official website], the commission said that Russia violated Georgian sovereignty by conferring Russian citizenship to residents of South Ossetia and Abkhazia and recognizing the regions as independent states. The IIFFMCG also found that the Russian response to the offensive "went far beyond the reasonable limits of defense" and that Russia violated international law by continuing military operations after a ceasefire agreement. Further, the report concluded that "all sides to the conflict - Georgian forces, Russian forces and South Ossetian forces - committed violations of International Humanitarian Law and Human Rights Law," but that the use of similar armaments made it difficult to determine the perpetrators of what "might be described as war crimes."

The South Ossetia conflict lasted for five days in August 2008 when Georgia tried to take control of its breakaway region, and Russian troops defended the region, entering Georgia. In August, Russian President Dmitry Medvedev [official website, in Russian] proposed a bill in response to the conflict that would allow the Russian army to intervene beyond its borders [JURIST report] to protect Russian citizens abroad. In February, the US State Department released its annual country reports on human rights [JURIST report], accusing both Russia and Georgia [text] of violations during the conflict. In January, Human Rights Watch (HRW) [advocacy website] urged both Russia and Georgia to investigate possible violations of the laws of war [JURIST report] during and after the conflict. That report followed closely a report [JURIST report] released by Amnesty International (AI) [advocacy website] in November 2008, which alleged possible human rights violations during the conflict, including attacks on civilians and civilian targets by both sides, the use of land mines and cluster bombs, the treatment of prisoners of war and civilian detainees, and the wide-spread displacement of civilians during and after the fighting. Georgia and Russia [JURIST reports] are currently exchanging allegations of war crimes in the International Criminal Court (ICC) and the International Court of Justice (ICJ) [official websites].

[JURIST] The Obama administration on Wednesday informed Congress that it objects to a proposed journalist shield law that would protect journalists who refuse to disclose sources that leak national security information. Under changes proposed by the administration, a reporter who provides leaked information that is deemed relevant to national security [NYT report] would not be protected by the Free Flow of Information Act of 2009 [HR 985 materials]. The administration also asked for insertion of language that would be deferential to the executive office with regards to what qualifies as national security. These changes would further weaken protections that were previously reduced by an amendment proposed last month by Senator Charles Schumer (D-NY) [official website]. Schumer's amendment [text, PDF] lessens protection for bloggers who may be forced to reveal confidential sources, restricting protections to individuals working as a "salaried employee" or "independent contractor." The Senate version of the bill [S 448 materials] has not been voted out of the Judiciary Committee, and it is unclear when a vote will be scheduled.

The US House of Representatives passed the Free Flow of Information Act in late March, days after it was voted out of the House Judiciary Committee [JURIST reports]. The House passed a similar bill in 2007, but it was never voted on by the full Senate, despite passing the Judiciary Committee by a 15-2 vote [JURIST reports]. The bill was first proposed in response to the jail sentence given to Judith Miller, a journalist who would not reveal who provided her with the identity of CIA agent Valerie Plame [JURIST news archive].

[JURIST] Associated Press CEO Tom Curley told the Senate Judiciary Committee [official website] on Wednesday that passage of the OPEN FOIA Act [text] is a necessary first step [testimony, PDF] to counter the "secrecy reflex at some agencies." At a hearing [materials; recorded video], Curley said that the use of section b(3) of the Freedom of Information Act [text], which allows Congress to write specific statutory exemptions into legislation, creates a "very large black hole in our open records law," which does not allow public or judicial review of the justification for withholding information. Curley highlighted questionable uses of b(3) exemptions which "have not been tested or challenged, or even discussed, in any public forum," including:

the identities of watermelon growers, the identities of people who handle honey, ... the ingredients in cigarettes, the private sector advice that government trade representatives and congressional committees use to shape trade policy, and also the studies that chemical plants conduct to determine the impact of any worst-case accident on neighboring communities and the environment.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday added 10 cases to its 2009 docket. In addition to taking a case dealing with the Second Amendment and another on a controversial terrorism law [JURIST report], the Court also granted certiorari [order list, PDF] in eight other cases. In Berghuis v. Thompkins [docket; cert. petition, PDF], the Court will consider whether a police officer can non-coercively persuade a defendant to cooperate after the defendant has heard his Miranda rights but has not invoked or waived them. The US Court of Appeals for the Sixth Circuit ruled that the defendant's nearly three-hour silence in response to questioning constituted a desire to not waive his rights [opinion, PDF] and that the state failed to satisfy its heavy burden of showing such a waiver took place. The case will be the third Miranda case that the Court will review this term.

The Court will also consider whether there is a constitutional violation when the African-American representation on a jury is disproportionate to the community population. In Berghuis v. Smith [docket; cert. petition, PDF], the Court will resolve a circuit split on the comparative-disparity test to make such a determination. The Sixth Circuit held [opinion, PDF] that the defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community was violated, while the Michigan Supreme Court found no such violation.

In Carr v. United States [docket; cert. petition, PDF], the Court will consider whether the failure to register provision [18 USC § 2250] of the Sex Offender Registration and Notification Act (SORNA) can be applied retroactively to underlying offenses occurring before SORNA's enactment. The Court will review whether the ex post facto clause applies to such a prosecution. The US Court of Appeals for the Seventh Circuit held that, since the violation of failing to register was not complete when SORNA became applicable to the defendant, his rights under the ex post facto clause were not violated [opinion, PDF].

In Lewis et al. v. City of Chicago [docket; cert. petition, PDF], the Court will decide whether a plaintiff seeking to bring suit for employment discrimination for disparate impact must file a charge with the Equal Employment Opportunity Commission (EEOC) [official website] within 300 days after test results are released or 300 days after hiring decisions are announced. The Seventh Circuit ruled [opinion, PDF] that the statute of limitations began running when the allegedly disparate results were announced, not when hiring decisions were made. The case involves minority firefighters in Chicago and follows the Court's decision last term in Ricci v. DeStafano [opinion, PDF; JURIST report] regarding the disparate impact doctrine of Title VII.

In Astrue v. Ratliff [docket; cert. petition], the Court will consider whether an award of fees and expenses under the Equal Access to Justice Act [28 USC § 2412] is payable to the prevailing party rather than to the party's attorneys, making it subject to being off-set by pre-existing debt owed to the government. The US Court of Appeals for the Eighth Circuit ruled [opinion, PDF] that the fees are awarded to the attorneys, shielding them from government debt offset.

In United States v. O’Brien and Burgess [docket; cert. petition, PDF], the Court will decide whether mandatory minimum sentencing enhancement for the use of a machine gun in a federal crime is an element of the underlying offense that must be proved to a jury beyond a reasonable doubt or if it is to be determined by a judge at sentencing by a preponderance of the evidence. The US Court of Appeals for the First Circuit ruled [opinion, PDF] that such a determination should be made by a jury, relying on statutory interpretation and creating a circuit split.

In Samantar v. Yousuf [docket; cert. petition, PDF], the Court will decide whether a foreign state's immunity under the Foreign Sovereign Immunities Act [materials] extends to an individual acting in an official capacity on behalf of the foreign state. The plaintiffs allege that Mohamed Ali Samantar committed acts of torture during the regime of Somalian dictator Mohamed Siad Barre. The US Court of Appeals for the Fourth Circuit held that immunity did not apply to individuals [opinion, PDF], allowing the suit to proceed and reversing the district court's opinion.

In the combined cases of Migliaccio v. Castaneda [docket; cert. petition, PDF] and Henneford v. Castaneda [docket; cert. petition, PDF], the Court will consider whether the Federal Tort Claims Act is the sole remedy for claims regarding the care provided by Public Health Services personnel. The Court will decide if the act precludes the cause of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion text]. The US Court of Appeals for the Ninth Circuit ruled that the legislation did not preclude a Bivens action, while the Second Circuit has held [opinion, PDF] that it does.

[JURIST] International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] announced [press release] Wednesday that the ICC will prosecute the most responsible parties for the December 2007 Kenyan post-election violence [JURIST news archive] now that Kenya's September 30 deadline to establish an appropriate tribunal has lapsed. Because Kenya is party to the Rome Statute [text, PDF], Moreno-Ocampo may prosecute suspects for crimes over which the ICC has jurisdiction. In a three-pronged approach, other perpetrators will be prosecuted in national accountability proceedings to be defined by the Kenyan government, while a truth and reconciliation commission will investigate the extent of the conflict and suggest ways to prevent similar violence in the future. Moreno-Ocampo said that "Kenya will be a world example on managing violence" through this three-pronged approach. In July, Moreno-Ocampo had said that the Kenyan government has the "the primary responsibility for investigating and prosecuting these crimes" and had "committed to refer the case to the ICC by June 2010" if it is unable to create an appropriate tribunal by September, as planned [JURIST report].

In August, Human Rights Watch (HRW) [advocacy website] called for an independent tribunal [JURIST report] with international support and participation because "the Kenyan judiciary lacks independence," and the necessary reforms announced [transcript] by the Kenyan Cabinet [official website] in late July would be insufficient. Also in July, Moreno-Ocampo received and reviewed a sealed envelope sent to the ICC [JURIST reports] by former UN secretary-general and current chairman of the AU Panel of Eminent African Personalities Kofi Annan [official website] that contained a list of suspects believed to be responsible for the post-election violence. Earlier this year, the Kenyan parliament rejected [JURIST report] the proposed document that Kenyan President Mwai Kibaki [official profile] and opposition leader Raila Odinga [campaign website] agreed to draft [JURIST report] to establish a new Constitution of Kenya (Amendment) Bill, 2009 [text, PDF], along with a Special Tribunal for Kenya Bill, 2009 [text, PDF] that would have set up a special domestic court to those allegedly responsible for the December 2007 post-election crimes that resulted in an estimated 1,500 deaths. Tens of thousands of protesters took to Kenya's streets accusing Kibaki of election fraud after early opinion polls suggested rival Odinga was in the lead.