December 2009 Archives


State laws taking effect New Year's cover highway safety to social policy
Dwyer Arce on December 31, 2009 2:46 PM ET

[JURIST] A plethora of state laws set to take effect after Friday, New Year's Day, seek to regulate everything from social policy to highway safety. Texting while driving will become illegal [AP report] in Illinois, Oregon, and New Hampshire, which will join nearly twenty other prohibiting states and the federal government [JURIST report]. Georgia will begin administering stiffer fines [AP report] for so called "super speeders." Starting Saturday, North Carolina will no longer allow smoking [JURIST news archive] in bars and restaurants, joining the nearly thirty other states with similar bans in place. Illinois will extend an exemption [State Journal-Register report] on their indoor smoking ban to American Indians during religious practices. Oregon will no longer allow cigarettes to be dispensed [AP report] in vending machines in places where minors are allowed. Additionally, Oregon employers will be not be allowed to prevent employees from wearing religious clothing on the job or taking time off for religious observances.

New Hampshire will become the fifth state to legalize same-sex marriage [JURIST news archive] after passing legislation [JURIST report] to that effect earlier this year. In Wisconsin, same and opposite sex unwed couples will be allowed to receive state health insurance benefits. In California, same-sex spouses will be eligible [San Diego Union-Tribune report] for the same benefits available to opposite sex couples so long as they are married in a state recognizing same-sex marriage. Additionally, California will become the first state to ban the use of artificial transfats in restaurants, and will give celebrities greater legal remedy against paparazzi.






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GOP state AGs threaten legal action against health care reform provision
Ximena Marinero on December 31, 2009 1:03 PM ET

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[JURIST] Thirteen state attorneys general, all Republicans, demanded in a letter [text, PDF] sent Wednesday to the Speaker of the US House of Representatives and the Senate Majority Leader that a controversial provision in the health care reform bill [text, PDF] approved [JURIST news report] in the Senate [official website] last week should be struck because it unfairly benefits the state of Nebraska. In the letter, written by South Carolina Attorney General Henry MacMaster [official website], the group said they would legally challenge the provision if it were not removed, citing reports of the deal struck by Nebraska senator Ben Nelson (D-NE) [official website; statement] in exchange for his vote. The attorneys general argued that the provision is unconstitutional and "antithetical to the legitimate federal interests in the bill" that "the states share with the federal government the cost of providing such care to their citizens" because it exempts Nebraska from such shared cost. They also asserted that

[t]he fundamental unfairness of H.R. 3590 may also give rise to claims under the due process, equal protection, privileges and immunities clauses and other provisions of the Constitution... Since the only basis for the Nebraska preference is arbitrary and unrelated to the substance of the legislation, it is unlikely that the difference would survive even minimal scrutiny.

South Carolina Republican Senators Lindsey Graham and Jim DeMint [personal websites] enlisted [press release, PDF; letter, PDF] MacMaster's help to challenge the bill as amended.

The Senate passed the health care reform bill last Thursday in a 60-39 vote [roll call] that split down party lines. The legislation would expand affordable health care to more than 30 million Americans and overhaul the private insurance system [Washington Post report]. Senate Republicans have vowed to continue to fight and amend the bill arguing that it is too expensive and would violate personal rights [NYT report] by compelling people to buy health insurance. Last month, the US House of Representatives [official website] approved [JURIST report] their own version of the legislation, the Affordable Health Care for America Act [HR 3962 materials]. The two bills must be reconciled in conference committee before legislation can go to the President for signature.




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Obama issues first veto rejecting stopgap spending bill
Ximena Marinero on December 31, 2009 10:37 AM ET

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[JURIST] US President Barack Obama effectively issued his first veto [WH memorandum of disapproval] of congressional legislation Wednesday, rejecting as "unnecessary legislation" a stopgap spending bill [HJ Res 64 text, PDF] that was drafted in case inclement weather would have interfered with the vote that approved the appropriations for the Department of Defense (DOD) [official website] two weeks ago. The stopgap spending bill would have allowed the DOD to continue to function if the appropriations bill [text] for fiscal year 2010 were stalled in Congress. As a technical matter Obama allowed the bill to expire on his desk during the congressional adjournment, precipitating a so-called pocket veto [Senate glossary]. The actual appropriations bill was approved [HR 3326 materials] on December 19, and was signed [AP report] into Public Law No. 111-118 by President Obama on the same day.

The appropriations bill approved $626 billion for Iran and Afghanistan operations and a pay raise for the military. The FY 2010 appropriations also includes a budget for a two-month extension of long-term unemployment benefits, subsidized healthcare benefits for those unemployed, transit funding, three provisions for the Patriot Act, and legislation to safeguard Medicare payments to doctors from being cut.




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France Constitutional Council rejects carbon emissions tax
Hillary Stemple on December 30, 2009 10:05 AM ET

[JURIST] The French Constitutional Council [official website, in French] rejected [text, in French] a tax on carbon emissions Tuesday, stating there were too many exemptions for polluters in the plan. The tax, set to go into effect on January 1, 2010, was part of the 2010 Finance Act [text, PDF; in French] and was intended to reduce carbon emissions in order to slow climate change [JURIST news archive] and to modify the tax collection system in France. The tax was set at 17 euros per ton of emitted carbon dioxide, but the court found that 93 percent of industrial emissions would be exempt. More than 1,000 of France's largest polluters would have been able to avoid the tax [BBC report], while the cost of fuel for vehicles and heating would have risen for French citizens. Senior French officials have pledged [Reuters report] to revise the plan by January 20 say the court's objections will be taken into consideration when the revised legislation is drafted. Critics of the plan have said that it was a mistake for France [Times report] to implement this plan on their own and that the issue should be dealt with through negotiations with other countries.

French President Nicholas Sarkozy [official website, in French; JURIST news archive] strongly supported the tax and promoted it heavily before the UN Climate Change Conference (COP15) [official website] earlier this month. The COP15 conference was originally designed to produce a global climate change treaty to replace the expiring Kyoto Protocol [text, PDF; JURIST news archive], but did not result in a legally-binding agreement [JURIST report].






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Korea president to pardon ex-Samsung CEO
Devin Montgomery on December 29, 2009 3:20 PM ET

[JURIST] South Korean officials announced Monday that President Lee Myung-bak [official website] plans to pardon former Samsung [corporate website] Chairman and CEO Kun-Hee Lee [JURIST news archive] on tax fraud charges he was convicted of in 2008. Lee had faced a suspended three-year prison term after an additional breach of trust conviction against him was vacated [JURIST reports]. The already lenient sentence given to Lee has been criticized [Korea Times report] as evidence of special treatment for the county's elite. Supporters hope that the pardon [Korea Herald report] will allow Lee to again assist the country in its bid for the 2018 Winter Olympics, and even resume his post with Samsung. The pardon is scheduled to take effect on Thursday.

Samsung, South Korea's largest corporation, has been at the center of numerous legal battles over the past few years. In May 2007, a South Korean appellate court upheld the conviction of two Samsung executives connected with illegal stock trading [JURIST reports]. In April 2007, another Samsung executive pleaded guilty [US DOJ press release; JURIST report] to US charges of conspiring to artificially inflate the cost of Dynamic Random Access Memory (DRAM), affecting the price of personal computers worldwide. In 2005, Samsung reached an agreement [JURIST report] with the US Department of Justice to plead guilty to charges that it conspired with other technology companies to fix prices on DRAM chips.






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North Korea detains US citizen for illegal entry
Devin Montgomery on December 29, 2009 1:07 PM ET

[JURIST] The state-run Korean Central News Agency (KCNA) [official website] confirmed Tuesday that police have detained a US citizen for illegally entering North Korea. The KCNA did not disclose the identity of the individual, but it is suspected to be [US DOS release] US-Korean rights activist Robert Park. A spokesperson for Pax Koreana, a rights group associated with Park, said that he entered North Korea [Yonhap report] to protests its human rights record and to deliver a letter to leader Kim Jong Il [JURIST news archive]. The KCNA said that his entry is being investigated, but did not say how long he will be held or what charges he will face.

In August, Kim pardoned [JURIST report] US journalists Laura Ling and Euna Lee [BBC profile], who had been arrested [JURIST report] in March for allegedly crossing into the country. Before the pardon, the two had been sentenced [JURIST report] to 12 years in prison. Some US commentators have suggested that the journalists were being used as pawns [JURIST comment] in policy disputes between the US and North Korea. North Korea has long faced international criticism for its human rights record, but has defended its policies [JURIST reports] before the UN.






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China executes UK national for drug smuggling
Brian Jackson on December 29, 2009 12:27 PM ET

[JURIST] British national Akmal Shaikh was executed [Xinhua report] Tuesday by the Chinese government after being convicted of bringing almost nine pounds of heroin into the country. Following Shaikh's 2007 arrest [Times Online backgrounder] and November 2008 death sentence, rights groups have urged the Chinese government not to carry out the punishment [Reprieve release], arguing that Shaik suffers from mental illness. British Prime Minister Gordon Brown [official website] has also issued a statement [press release] condemning the execution. China has defended the sentence, saying that Shaikh recieved a fair trial [Xinhua report].

China has recently faced significant criticism of its human rights record and use of the death penalty. Last week, human rights activist Liu Xiabo was sentenced to 11 years [JURIST report] in prison for subversion following a two-hour trial. His arrest and trial were condemned [HRW release] by numerous international human rights groups. Earlier this month, a Chinese court sentenced five more individuals to death [JURIST report] for their role in the Xinjiang riots, bringing the total number of individuals sentenced to death to 14. Nine of those 14 individuals were executed in November [JURIST report].






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Afghanistan president creates delegation to investigate civilian deaths
Brian Jackson on December 29, 2009 11:30 AM ET

[JURIST] Afghan president Hamid Karzai [official website; JURIST news archive] on Tuesday appointed a delegation [press release] to begin an investigation of ten civilian deaths, including eight schoolchildren, that are thought to have occurred during a raid by international forces in Kunar province. The raid in the Narang district occurred on December 26th, and allegedly involved NATO forces [WSJ report], though their involvement has not been confirmed. The same day that Karzai announced the formation of the special delegation, a UN committee released figures [AFP report] that show that civilian deaths in Afghanistan in 2009 are up by 10% over deaths in 2008.

Civilian deaths as a result of US or coalition forces raids are a sensitive topic in US-Afghan relations. In June, General Stanley McChrystal, the top US commander in Afghanistan, announced that protecting civilians [BBC report] is the top priority of US forces. In May, the Afghan parliament demanded that restrictions be placed [JURIST report] on airstrikes following an attack that resulted in the death of 140 civilians.






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Ninth Circuit upholds ruling limiting use of tasers
Sarah Miley on December 29, 2009 11:04 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [text, PDF] Tuesday that police must face an "immediate threat" from an offender before using a taser gun to subdue them. Sacramento County police officer Brian McPherson had shot Carl Bryan with a taser gun during a traffic stop causing him to fall face-first on the asphalt, fracturing his teeth and causing facial contusions. The court held that because Bryan's actions posed no threat to McPherson or others, the use of the taser was unwarranted and unconstitutional:

Although Bryan had shouted expletives to himself while pulling his car over and had taken to shouting gibberish, and more expletives, outside his car, at no point did he level a physical or verbal threat against Officer McPherson. An unarmed, stationary individual, facing away from an officer at a distance of fifteen to twenty-five feet is far from an “immediate threat” to that officer. Nor was Bryan’s erratic, but nonviolent, behavior a potential threat to anyone else... The circumstances here show that Officer McPherson was confronted by, at most, a disturbed and upset young man, not an immediately threatening one.
The case originated as a civil suit by Bryan against McPherson for the use of excessive force in violation of 42 U.S.C. § 1983 [text] and assault and battery and intentional infliction of emotional distress, a violation of California Civil Code § 52.1 [text]. The court below had also found in Bryan's favor.

The ruling is one of the most significant decisions yet concerning limitations on taser guns. In February, the American Civil Liberties Union [official website] petitioned [press release] the US Supreme Court to hear a case involving a Florida resident claiming excessive use of a taser gun by a law enforcement official. The petition involves the 2008 decision [text, PDF] of the Eleventh Circuit in which an officer was found to be justified in using the weapon. The event was captured [YouTube, video] on the officer's patrol car video camera.





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Vietnam court sentences pro-democracy advocate for subversion
Devin Montgomery on December 28, 2009 2:54 PM ET

[JURIST] A Vietnamese court on Monday sentenced pro-democracy dissident Tran Anh Kim to five and a half years in prison for subversion under Article 79 [text] of the Vietnamese penal code. During a four-hour trial Kim admitted being to member of the banned groups Democracy Party of Vietnam and Bloc 8406 [group manifesto, PDF]. He could have faced the death penalty for the crime, but was given leniency [AFP report] due to a history of military service. Kim is one of five dissidents arrested in June and July by Vietnam's communist government. The remaining suspects, including prominent Vietnamese pro-democracy lawyer Le Cong Dinh [HRW release], are expected to go on trial [BBC report] on January 20.

Dinh was charged [JURIST report] with "colluding with foreign reactionaries to sabotage the Vietnamese State," in violation of Article 88 [text] of the Vietnamese penal code, for the alleged distribution of anti-government documents. He was also disbarred [JURIST report] following his arrest. Earlier this year, two Vietnamese newspaper editors were dismissed from their jobs for protesting the arrests of two journalists [JURIST reports] who reported on government corruption. The arrested reporters, who were accused of 'abusing freedom and democracy,' were sentenced to two years of prison and "re-education" for reporting on the so-called PMU 18 corruption scandal [JURIST reports].






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Obama outlines measures taken following attempted Detroit plane bombing
Haley Wojdowski on December 28, 2009 1:58 PM ET

[JURIST] US President Barack Obama on Monday announced steps [transcript] the federal government is taking to address air travel security following the Friday attempt by Umar Farouk Abdulmutallab to detonate an explosive device on Northwest Airlines Flight 253. He said that as soon as the attempted attack was discovered, officials increased screening requirements and increased the number of air marshals aboard flights. He also confirmed that he had on Sunday ordered the review [NYT report] of how the US no-fly list [JURIST news archive] is managed as well as screening and other security procedures:

I've ordered two important reviews, because it's absolutely critical that we learn from this incident and take the necessary measures to prevent future acts of terrorism.

The first review involves our watch list system, which our government has had in place for many years to identify known and suspected terrorists so that we can prevent their entry into the United States. Apparently the suspect in the Christmas incident was in this system, but not on a watch list, such as the so-called no-fly list. So I have ordered a thorough review, not only of how information related to the subject was handled, but of the overall watch list system and how it can be strengthened.

The second review will examine all screening policies, technologies and procedures related to air travel. We need to determine just how the suspect was able to bring dangerous explosives aboard an aircraft and what additional steps we can take to thwart future attacks.
Earlier on Monday, Secretary of Homeland Security Janet Napolitano [official profile] aknowledged [NBC interview, video] that Abdulmutallab had been listed on the Terrorist Identities Datamart Environment (Tide) list [fact sheet] and conceded that “our system did not work in this instance, and no one is happy or satisfied with that." Abdulmutallab’s Monday hearing in front of a federal judge in Detroit has been postponed without explanation.

US authorities on Saturday filed charges [press release; JURIST report] against Abdulmutallab, a Nigerian national, for allegedly attempting to set off an explosive device on an airplane bound from Amsterdam to Detroit on Friday. Abdulmutallab is charged with willfully attempting to destroy an aircraft or aircraft facilities in violation of 18 USC § 32 [text]. Earlier this year, twelve men were charged and three sentenced to life in prison [JURIST reports] in connection with a plot to blow up transatlantic planes leaving a London airport using liquid explosives. Richard Reid and Saajid Badat [GlobalSecurity profiles] were convicted [JURIST report] in 2005 and 2003 respectively after Reid attempted to blow up an American Airlines flight in 2001 using an explosive device concealed in his shoe.





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DOJ investigating financier Stanford connections to legislators: report
Devin Montgomery on December 28, 2009 1:24 PM ET

[JURIST] The US Department of Justice [official website] has begun investigating political donations and other connections between billionaire financier Allen Stanford [BBC profile; JURIST news archive], accused of defrauding investors [indictment, PDF; JURIST report] out of $7 billion, and US lawmakers, according to a Sunday report [text] by the Miami Herald. Stanford donated over $2.3 million to lawmakers' campaigns and spent over $5 million in lobbying efforts while allegedly carrying out the fraud. According to the report, investigators have recovered emails between Stanford and several legislators and are investigating whether Stanford used the money to gain unlawful favors. It is speculated that legislation that Stanford successfully lobbied against would have likely exposed his use of offshore accounts to conduct his alleged scheme. Stanford's trial is set to begin in January 2011.

Last week, a federal judge denied a motion [Reuters report] by Stanford's lawyers seeking his release on bail on the basis of mental health concerns. Stanford has denied the charges [JURIST report] against him and was originally set to be released on $500,000 bail until prosecutors successfully appealed the decision. Through three of his investment companies, Stanford allegedly violated the Securities Act of 1933, the Securities Exchange Act of 1934 and the Investment Company Act of 1940 [texts]. He was originally charged [complaint, PDF; JURIST report] in February with running a fraudulent investment scheme by selling certificates of deposit on the promise of improbably high interest rates.






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Philippines prosecutors begin rebellion trial
Devin Montgomery on December 28, 2009 12:19 PM ET

[JURIST] The Philippine Department of Justice (PDOJ) [official website] on Monday began the trial of over 600 people charged with rebellion for allegedly interfering with government operations following the November killings [PDOJ release] of 57 in the country's semi-autonomous province of Maguindanao. All but five of the accused missed a Monday deadline [Manila Standard Today report] to respond to the charges against them, and fewer than 40 of the suspects have been detained by police. If convicted, those charged could face as much as life in prison. Prosecutors also resumed Monday [Inquirer report] the trial of members of the influential Ampatuan family, who are charged with leading the politically-motivated killings.

Following the killings, Philippine President Gloria Macapagal-Arroyo [official website] imposed martial law [JURIST report] and suspended habeas corpus in the province. She later lifted the conditions, following international pressure and domestic legal challenges [JURIST reports].






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Human rights groups fear violence as Thailand forces deportation of Hmong
Jay Carmella on December 27, 2009 4:12 PM ET

[JURIST] Several human rights groups, including Human Rights Watch (HRW) [advocacy website; JURIST news archive], on Sunday expressed concern over the potential for violence as the Thai government begins the forced deportation of 4,000 ethnic Hmong [materials] to Laos from a refugee camp inside Thailand. The Hmong fear that they will face [AP report] persecution in Laos for supporting the opposition government if they are forced to leave their camp in Thailand. The Thai government believes that the Hmong entered the country illegally, and therefore are not entitled to be protected as refugees. In anticipation of potential problems with the evacuation, more than 4,500 Thai troops, police and security staff were sent [Bangkok Post report] to the camp for assistance. In a statement [text] issued by the US Department of State [official website] last week, the US government asked Thailand to reconsider its decision.

The deportation of the Hmong has already caused tension in the region. In October, HRW called on Laos [JURIST report] to release Hmong leaders who were forcibly repatriated from Thailand and imprisoned in Laos for their role in a June protest at the camp. The Hmong have been engaged in conflict with the Laos government since the Vietnam War, during which they supported the US [MSF backgrounder, PDF]. Over 300,000 Hmong fled Laos to Thailand in the early 1970s, where several thousand still remain. In 2004, Thailand began forcibly repatriating [BBC report] Hmong refugees to Laos, where refugees reportedly fear reprisal.






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Four killed, hundreds arrested in Iran protests
Jay Carmella on December 27, 2009 3:02 PM ET

[JURIST] At least four people were killed in Iran on Sunday after violence broke out between government security forces and opposition protesters. The protests, which were the largest since those that followed the June presidential election [JURIST news archive], interrupted [Tehran Times report] the Shia Muslim celebration of Ashura, which marks the 7th century death of the Prophet Muhammad's grandson Hussein. Iranian officials warned the public against protests prior to the holy day. The government initially denied reports that shots were directed into the crowds, claiming that the security forces were not armed. Police later confirmed [Tehran Times report] that four individuals were killed, several others, including police officers, were injured and over 300 protesters were arrested. Among those reported dead [NYT report] is the 35-year-old nephew of opposition leader Mir Hossein Mousavi [JURIST news archive].

The Iranian government has faced significant international scrutiny for its handling of the protests and treatment of thousands arrested as a result. Earlier this month, Amnesty International (AI) [advocacy website] labeled [JURIST report] human rights violations committed by the Iranian government following the election among the worst of the past 20 years. In September, human rights groups called for [JURIST report] the UN General Assembly [official website] to appoint a special envoy to investigate allegations of rights violations. Alleged human rights abuses of detainees include sexual assault, beatings, and forced confessions [JURIST reports].






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O'Connor urges states to move towards merit-based judicial selection
Jonathan Cohen on December 27, 2009 10:10 AM ET

[JURIST] Former US Supreme Court Justice Sandra Day O'Connor [JURIST news archive] and the Institute for the Advancement of the American Legal System (IAALS) [advocacy website] this week began a campaign to urge state legislatures to move towards merit-based judicial appointments instead of direct judicial elections. According to the IAALS there are 33 states that select judges through direct elections, which it says have become characterized by unprecedented campaign spending and sensational advertising. The O'Connor Judicial Selection Initiative (OJSI) [advocacy website] will likely push legislatures to adopt a system similar to the one O'Connor helped to introduce in Arizona, where a state commission made up mostly of non-lawyers pick judges, Governors appoint judges selected by the commissions, and voters decide in future elections whether the judges stay in office. Pennsylvania Supreme Court Justice Seamus McCaffery [official profile] has called the system elitist and says [CNN report] that elections make him accountable to the citizens of Pennsylvania, rather than the governor or a commission. OJSI will push for these reforms to be made in the 2010 state legislative sessions.

The initiative comes after a June decision [JURIST report] by the US Supreme Court that West Virginia Supreme Court of Appeals [official website] Justice Brent Benjamin [official profile] violated the due process [Cornell LII backgrounder] rights of a civil plaintiff when he did not recuse himself from a case where the defendant was a major campaign contributor of his. In September 2006, O'Connor said that judges have been intimidated and judicial independence threatened [JURIST report] by the involvement of the legislative and executive branches. O'Connor, the first woman ever on the US Supreme Court, retired [JURIST report] in January 2006 after 25 years on the bench.






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US files charges in attempted Detroit plane bombing
Andrew Morgan on December 26, 2009 5:05 PM ET

[JURIST] US authorities on Saturday filed charges [press release] against a Nigerian national for allegedly attempting to set off an explosive device on an airplane bound from Amsterdam to Detroit on Friday. According to an affidavit [text, PDF] filed by Special Agent Theodore Peissig of the Federal Bureau of Investigation [official website], 23-year-old Umar Farouk Abdulmutallab detonated a device thought to contain the high explosive pentaerythritol tetranitrate (PETN) while Northwest Airlines Flight 253 was making its approach to Detroit Metropolitan Wayne County Airport [official website]. Announcing the charges, US Attorney General Eric Holder [official profile] said:


This alleged attack on a U.S. airplane on Christmas Day shows that we must remain vigilant in the fight against terrorism at all times. Had this alleged plot to destroy an airplane been successful, scores of innocent people would have been killed or injured. We will continue to investigate this matter vigorously, and we will use all measures available to our government to ensure that anyone responsible for this attempted attack is brought to justice.

Abdulmutallab is charged with willfully attempting to destroy an aircraft or aircraft facilities in violation of 18 USC § 32 [text]. He was treated at the University of Michigan Medical Center [official website] for burns allegedly suffered when a device concealed on his body exploded, causing his clothing and the walls of the airplane to catch fire before being smothered by crew members and other passengers.

Earlier this year, twelve men were charged and three sentenced to life in prison [JURIST reports] in connection with a plot to blow up transatlantic planes leaving a London airport using liquid explosives. Richard Reid and Saajid Badat [GlobalSecurity profiles] were convicted [JURIST report] in 2005 and 2003 respectively after Reid attempted to blow up an American Airlines flight in 2001 using an explosive device concealed in his shoe.





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US Senate votes to raise debt ceiling
Steve Dotterer on December 26, 2009 3:26 PM ET

[JURIST] The US Senate [official website] on Thursday approved a measure raising the federal borrowing limit by $290 billion. The bill was passed pursuant to recommendations by officials at the US Treasury Department [official website] that additional funding was necessary to continue government operations. HR 4314 [LOC materials], which passed 60-39 [roll call], amends 31 USC § 3101 [text] to authorize the federal government to hold a total of $12.4 trillion in public debt, an increase from the previous $12.1 trillion. The amount represents the sum necessary to fund continuing government operations until February. The bill, introduced on December 15, received House approval the following day before being presented to the Senate. US President Barack Obama [official profile] must sign the legislation before it takes effect.

The bill does not disburse funds for government operations, but formalizes [WSJ report] debt obligations already incurred by the federal government. Debate [NYT report] over increasing the debt ceiling has reflected a continuing partisan divide over federal fiscal policy, echoing deliberation over a health care reform bill [JURIST report], which also passed Thursday in the Senate. The increase will be the fourth in 18 months [Business Week report] and will augment $5.4 trillion [NYT report] in debt ceiling increases passed under former President George W. Bush [official profile].






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Pakistan may add Supreme Court seats to deal with backlog: law minister
Dwyer Arce on December 26, 2009 12:03 PM ET

[JURIST] The Pakistani Minister for Law, Justice and Parliamentary Affairs Babar Awan [official profile] said on Friday that the government was considering increasing the size of the Supreme Court of Pakistan [official website] to deal with the backlog of cases created by the Court's overturning [JURIST report] of the National Reconciliation Ordinance (NRO) [text] earlier this month. The decision removed the amnesty granted by the NRO to President Asif Ali Zardari [official profile; BBC profile], Awan, and 8,000 other members of the ruling Pakistan Peoples Party [party website]. Awan went on to say that the establishment of proposed military courts would be unconstitutional [International News report] as a means of reducing strain on the courts caused by trying those who engaged in recent fighting [BBC backgrounder] in the Northwestern tribal provinces.

Last week, a Pakistani court issued an arrest warrant [JURIST report] for Interior Minister Rehman Malik [official profile] on corruption charges. The charges came two days after a special 17-member panel of the Supreme Court ruled unanimously [JURIST report] that the NRO is unconstitutional, paving the way for corruption charges to be brought against Zardari and other members of his government. The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007 as part of a power-sharing accord allowing former prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges she had faced. The ordinance also applies to similar charges against politicians who were charged, but not convicted, of corruption between 1988 and 1999.






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China rights activist sentenced to 11 years in prison for subversion
David Manes on December 25, 2009 2:13 PM ET

[JURIST] Chinese rights activist Liu Xiaobo was sentenced to 11 years in prison on Friday on subversion charges. Liu was tried [JURIST report] on Wednesday in a trial that lasted only two hours and was closed to foreign diplomats. The trial was called "a travesty of justice" [press release] by international human rights groups. Human Rights Watch [advocacy website] said before the trial that although "Liu's crimes are non-existent ... his fate has been pre-determined." It is unclear whether Liu's legal team will appeal the sentence [AFP report].

Liu, who spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule, and co-authored Charter 08 [text], a petition calling for political reforms in the country. Liu was formally arrested in June and charged [JURIST reports] earlier this month, but he has been in detention since last December, shortly before the petition's release. In June, rights groups marked the 20th anniversary of the 1989 uprising in Beijing's Tiananmen Square, calling for the government to investigate the incident [JURIST report] and implement changes called for by Charter 08.






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Taiwan ex-president Chen indicted for corruption in financial reform program
Dwyer Arce on December 25, 2009 12:20 PM ET

[JURIST] Former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] was indicted Thursday along with his wife and 20 other family members and prominent business leaders on charges of corruption and money laundering in relation to Chen's financial reform program. Chen and his wife are accused [Taiwan News report] of taking bribes from banks and financial institutions that sought to protect themselves during the reform. Prosecutors allege that the couple took more than $20 million [Taipei Times report] from financial groups that sought to ensure that their mergers with smaller financial institutions went smoothly. Additionally, Chen's daughter, who had previously avoided charges, was indicted [Formosa News report] for using state funds to buy a house.

Chen, who served as president of Taiwan from 2000-2008, and his wife have been serving life sentences [JURIST report] since September, when they were found guilty of embezzlement, receiving bribes, forgery, and money laundering. Taiwan's Constitutional Court [official website, in Chinese] dismissed an appeal [JURIST report] in October, in which Chen claimed that his constitutional rights were violated when judges were replaced during the proceedings against him. Chen was also indicted [JURIST report] shortly after his September life sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained last November, and was formally indicted [JURIST report] a month later. In January he unsuccessfully appealed [JURIST report] his pretrial detention, after staging three hunger strikes in protest. Chen maintains that current Taiwanese President Ma Ying-jeou [official website; JURIST news archive] is using Chen's trial to distance himself from Chen's anti-China views.






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Pakistan high court releases judgment on reinstatement of ousted chief justice
Dwyer Arce on December 24, 2009 1:02 PM ET

[JURIST] The Supreme Court of Pakistan [official website] on Wednesday released the detailed judgment [text, PDF] on the July 2007 decision to reinstate Chief Justice Iftikhar Muhammad Chaudhry [official profile]. The July 2007 ruling came in response to the suspension of Chaudhry [JURIST report] from the court by then-president Pervez Musharraf [BBC profile] in March 2007. In the judgment explaining the 10-3 decision, the court stated:


[The March 2007 order] whereby Mr. Justice Iftikhar Muhammad Chaudhry was restrained by the President to act as Chief Justice of Pakistan and Judge of the Supreme Court ... is patently illegal as it has no backing of Constitution or any law conferring power on the President to pass such type of restraint order. Consequently, [the] subsequent ... appointed [of] Mr. Justice Javed Iqbal as Acting Chief Justice is also void... Resultantly, the composition of Supreme Judicial Council with Mr. Justice Javed lqbal as Acting Chief Justice of Pakistan, and its proceedings till 15th March, 2007 are ... unconstitutional.

Following the ruling, Chaudhry resumed his role as Chief Justice until being removed again [JURIST report], along with several other members of the judiciary, during a state of emergency declared by Musharraf in the following November. Musharraf's successor, President Asif Ali Zardari [BBC profile], reinstated [JURIST report] Chaudhry and other judges ousted by Musharraf in March 2009. Chaudhry's reinstatement came as the conclusion to a campaign by former prime minister Nawaz Sharif [BBC profile] and the Pakistan Muslim League-Nawaz [party website], along with the Pakistan lawyers' movement [JURIST news archive] to see Chaudhry reinstated. Chaudhry had maintained throughout [JURIST report] that he still held the position of chief justice under the Pakistani constitution [text].





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Senate approves health care reform bill
Amelia Mathias on December 24, 2009 11:38 AM ET

[JURIST] The US Senate [official website] passed a health care reform bill [text, PDF] on Thursday in a 60 - 39 vote [roll call vote] that split down party lines. The legislation would expand affordable access to health care to more than 30 million Americans and overhaul the private health insurance system [Washington Post report]. Senate Republicans have vowed to continue to fight and amend the bill, which they claim is too expensive and violates personal rights [NYT report] by requiring people to have health insurance. President Barack Obama stated [press release]:


What makes it so important is not just its cost savings or its deficit reductions. It's the impact reform will have on Americans who no longer have to go without a checkup or prescriptions that they need because they can't afford them, on families who no longer have to worry that a single illness will send them into financial ruin, and on businesses that will no longer face exorbitant insurance rates that hamper their competitiveness. It's the difference reform will make in the lives of the American people.

Obama is expected to sign the bill early in the new year, after it has been reconciled with a similar House bill.

Health care reform [JURIST news archive] has been a top priority of the Obama administration for several months. Earlier this week, the Senate voted to stop debate [JURIST report] on the bill. Last month, the US House of Representatives [official website] approved [JURIST report] their reform bill, the Affordable Health Care for America Act [HR 3962 materials]. The House legislation has an estimated cost of around $1 trillon [WSJ report] over 10 years, includes a public option, and would extend coverage to nearly 96 percent of Americans. Like the Senate bill, the House version prohibits discrimination based on pre-existing conditions.





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Guantanamo prison may remain open until 2011: reports
Amelia Mathias on December 24, 2009 10:07 AM ET

[JURIST] The military prison at Guantanamo Bay [JURIST news archive] may have to remain open until 2011 to allow an Illinois prison time to prepare for the arrival of the detainees, according to Wednesday reports [AP report]. A spokesperson for Senator Dick Durbin (D-IL) [official website] said that the government's plan to purchase [JURIST report] the Thomson Correctional Center [official profile] in Illinois and refit it will take months to complete, rendering President Barack Obama's original promise to close the Guantanamo Bay detention facility by January 22, 2010, impossible. In addition, Congress would have to change a law [JURIST report] that prevents Guantanamo detainees from being transferred to the US except for prosecution, and pass a bill approving funding for the project. There have been protests from both sides of the aisle and from Illinois residents against bringing the remaining detainees, who number under 200, to the prison. The commission that will recommend to Illinois Governor Pat Quinn [official website] whether to sell the prison to the federal government will not make a decision until the middle of January.

Attorney General Eric Holder has said that buying the facility in Illinois will speed the closure of Guantanamo Bay [JURIST report], suggesting that the facility could be closed as early as next fall. In October, Holder announced that the Obama administration may miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials. US President Barack Obama originally issued the executive order to close Guantanamo within a year [JURIST report] last January 22, two days after taking office.






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China rights activist tried for subversion
Jaclyn Belczyk on December 23, 2009 3:09 PM ET

[JURIST] Prominent Chinese rights activist Liu Xiaobo was tried Wednesday on charges of inciting subversion. The trial lasted only two hours and was closed to foreign diplomats. Liu, who spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule, and co-authored Charter 08 [text], a petition calling for political reforms in the country. Liu was formally arrested in June and charged [JURIST reports] earlier this month, but he has been in detention since last December, shortly before the petition's release. Other organizers of the Charter 08 movement have asked that Liu's sentence be shared with them [Reuters report]. If convicted, he could face up to 15 years in prison. A verdict is expected on Friday.

In June, rights groups marked the 20th anniversary of the 1989 uprising in Beijing's Tiananmen Square, calling for the government to investigate the incident [JURIST report] and implement changes called for by Charter 08. More recently, China was criticized for an increase in political arrests [press release; JURIST report] leading up to the 2008 Beijing Olympics, including the trial of dissident Hu Jia and the conviction [JURIST reports] of Yang Chunlin [AI profile] for the same "subversion" crime with which Liu is charged.






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Argentina ex-president, cabinet members indicted on corruption charges
Sarah Miley on December 23, 2009 2:19 PM ET

[JURIST] Former Argentine president Carlos Menem [official profile; BBC profile] was indicted by the Federal Court on Tuesday on corruption charges. Menem is charged [Buenos Aires Herald report] with overpaying government officials while he was in office from 1989 to 1999. Menem's well-known minister of economy, Domingo Cavallo [G30 profile], was indicted on similar charges. Cavallo is known for his economic reforms [World Bank backgrounder] from 1991 to 1996, which decreased Argentina's inflation rate from 1,300 percent in 1990 to close to zero by the end of his term. Menem and Cavallo's reforms, which pegged Argentina's peso to the dollar, were abandoned in 2002 after the appreciation of the dollar caused large deficits and led to another economic recession [World Bank assessment]. Ten other government officials were also indicted for corruption, including Menem's former justice minister Raul Granillo Ocampo and former environmental secretary Maria Julia Alsogaray. The court has frozen the politicians' assets totaling more than USD $171,000.

This indictment is not the first to befall the former president. In October, an Argentine judge charged [JURIST report] Menem with allegedly covering up evidence related to the 1994 bombing of a Jewish community center in Buenos Aires. Menem, born in Argentina to Syrian immigrants, is accused of covering up the alleged involvement of Syrian-Argentine businessman Alberto Kanoore Edul. The court also indicted Menem's brother Munir Menem, former intelligence chief Hugo Anzorregui, retired judge Juan Jose Galeano, former deputy secretary of intelligence Juan Carlos Anchezar, and former police commissioner Jorge Palacios. Argentine prosecutors have alleged that the bombing, which killed 85 and injured more than 200, was planned by Iranian officials and carried out by Hezbollah [BBC backgrounder]. Menem is currently a sitting senator representing the Rioja Province and is protected by judicial immunity. He cannot be arrested for the crimes listed in these indictments unless he is impeached by the legislature.






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Russia Supreme Court rules arrest of former Yukos oil executive was illegal
Jaclyn Belczyk on December 23, 2009 12:00 PM ET

[JURIST] The Russian Supreme Court [official website, in Russian] ruled Wednesday that the 2003 arrest of Platon Lebedev [defense website], business partner of former Yukos oil executive Mikhail Khodorkovsky [defense website; JURIST news archive], was illegal. The court agreed to review [JURIST report] Lebedev's arrest last week after the European Court of Human Rights (ECHR) [official website] ruled [JURIST report] in 2007 that Lebedev's arrest and pre-trial detention violated his right to liberty and security under Article 5 of the European Convention on Human Rights [text, PDF]. The ECHR awarded awarded Lebedev more than USD $4,300 in damages and almost $10,000 to cover legal fees. It is unclear what effect Wednesday's ruling will have on Lebedev's case, but it could pave the way for a broader legal challenge to the proceedings.

Platon and Lebedev are serving an eight-year prison sentence after being convicted [JURIST report] in 2005 on fraud and tax evasion charges stemming from an alleged attempt to embezzle and strip Yukos of valuable assets. The two are currently on trial on additional related charges of money laundering and embezzlement, to which they have pleaded not guilty [JURIST reports]. They could face up to 20 additional years in prison if convicted. 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].






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Argentina court sentences former judge for 'Dirty War' crimes
Jaclyn Belczyk on December 23, 2009 11:08 AM ET

[JURIST] An Argentine court on Tuesday sentenced former judge Victor Brusa to 21 years in prison for crimes against humanity during the country's 1976-83 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. The Federal Court of Santa Fe found Brusa guilty [Pagina 12 report, in Spanish] of eight counts of crimes against humanity in his capacity as a judicial officer during the dictatorship. The court also sentenced five former police officers to between 19 and 23 years in prison for their roles kidnapping and torture. Brusa was arrested in 2005 after Argentina's Supreme Court struck down amnesty laws [JURIST report] adopted in the 1980s to deter military insurrection against the democratic government, prompting the government to reopen hundreds of human rights cases.

Last month, former Argentine president and general Reynaldo Bignone went on trial [JURIST report] for crimes against humanity allegedly perpetrated during the "Dirty War." The trial is expected to last until March. In October, an Argentinian court sentenced [JURIST report] retired general Jorge Olivera Rovere and retired colonel Jose Menendez to life in prison for "Dirty War" crimes. Last year, a court convicted [JURIST report] former general Luciano Benjamin Mendendez and another former general and sentenced them to life terms for kidnapping, torturing, and murdering Peronist politician Guillermo Vargas Aignasse in 1976 during the coup. Also in 2008, an Argentine court sentenced [JURIST report] Luciano Benjamin Menendez and four others to life in prison for the 1977 kidnapping, torture, and killing of four political dissidents. During the "Dirty War," an estimated 20,000 to 30,000 people were forcibly kidnapped or "disappeared" in a government-sponsored campaign against suspected dissidents.






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South Korea former PM indicted on bribery charges
Jaclyn Belczyk on December 23, 2009 10:10 AM ET

[JURIST] South Korean prosecutors on Tuesday charged former prime minister Han Myeong-sook with bribery. Han is accused of accepting USD $50,000 from former Korea Express CEO Kwak Young-wook in 2007 in exchange for helping him become president of Korea South-East Power Co., an affiliate of the state-run Korea Electric Power Corporation [corporate websites]. Han, a senior adviser to the main opposition Democratic Party, has denied the allegations [JoongAng Daily report], calling the charges politically motivated. Han was arrested last week after a court issued an arrest warrant [JURIST report] when she refused to appear for questioning voluntarily. Kwak is also under arrest on embezzlement charges.

Han served as the country's first female prime minister under president Roh Moo-hyun [BBC obituary; JURIST news archive] from April 2006 - March 2007. Roh, who was himself the target of a bribery investigation, died [JURIST report] in May from an apparent suicide. Shortly before his death, prosecutors had questioned Roh on suspicion that he accepted up to $6 million in bribes from Park Yeon-cha, a financial supporter who is also CEO of a shoe manufacturing company. Roh admitted that his wife had received $1 million from Park, but said the money was a loan rather than a bribe. Roh became president in 2003 after campaigning heavily against corruption.






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Federal appeals court rules against Microsoft in Word patent infringement suit
David Manes on December 23, 2009 9:46 AM ET

[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Tuesday affirmed [opinion, PDF] a lower court ruling [JURIST report] that Microsoft [corporate website; JURIST news archive] infringed on a patent of Canadian company i4i [corporate website] with portions of its Word 2007 word-processing software. i4i alleged that Microsoft willfully infringed on patents it held on XML technology, which was used extensively in Microsoft Word 2007. The US District Court for the Eastern District of Texas [official website] had ordered Microsoft to stop selling its Microsoft Word 2007 software, which contains patent infringing code, and to pay i4i $290 million in damages, but the injunction was stayed [JURIST report] while the appeals court reviewed the case. Microsoft said in a statement [press release] that it was already making plans to cooperate with the ruling:


With respect to Microsoft Word 2007 and Microsoft Office 2007, we have been preparing for this possibility since the District Court issued its injunction in August 2009 and have put the wheels in motion to remove this little-used feature from these products. Therefore, we expect to have copies of Microsoft Word 2007 and Office 2007, with this feature removed, available for U.S. sale and distribution by the injunction date. In addition, the beta versions of Microsoft Word 2010 and Microsoft Office 2010, which are available now for downloading, do not contain the technology covered by the injunction.

Microsoft plans to alter Microsoft Word 2007 to remove the infringing elements by the January 11 deadline so that sales are not interrupted.

Aside from the patent issues, Microsoft has faced numerous legal challenges based on antitrust and unfair competition allegations. Earlier this month, Microsoft settled [JURIST report] an EU antitrust suit, agreeing to allow European Windows users to switch to an alternative Internet browser beginning next year. In September, a South Korean court found Microsoft in violation [JURIST report] of antitrust laws for bundling software programs with its Windows operating system. The same court previously ruled in June that Microsoft violated antitrust laws [JURIST report], but dismissed the plaintiff's claims because they were not sufficiently linked to Microsoft's conduct.





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Michigan sues Illinois in Supreme Court over invasive fish species
Jaclyn Belczyk on December 23, 2009 9:07 AM ET

[JURIST] The state of Michigan on Monday filed suit [motion for preliminary injunction, PDF; petition, PDF] in the US Supreme Court [official website] against the state of Illinois seeking to close two waterways that allow invasive Asian carp to reach the Great Lakes. Michigan officials fear that the 100-pound fish, which reproduce rapidly, could wipe out native species and destroy the $7 billion Great Lakes fishing industry. Michigan is seeking to reopen a longstanding controversy [backgrounder, PDF] over the diversion canal, created in the 1890s to keep Chicago's sewage from flowing into Lake Michigan. The Court has issued decrees over the canal in 1930, 1933, 1956, 1967 and 1980. Michigan Attorney General Mike Cox said [press release]:


Stopping Asian carp is an economic and environmental necessity for Michigan. The Great Lakes are an irreplaceable resource. Thousands of jobs are at stake and we will not get a second chance once the carp enter Lake Michigan. The actions of Illinois and federal authorities have not been enough to assure us the Lakes are safe. That's why the waterways must be shut down until we are assured that Michigan will be protected.

The Supreme Court has original jurisdiction over disputes between states. The Court could rule on the motion for preliminary injunction [NYT report] as early as next week and then determine whether to take up the larger issue.

The carp have been traveling up the Mississippi and Illinois rivers for years. Last month, tests showed that the carp may have gotten through an underwater electric barrier and may now be within six miles of Lake Michigan. The fish were originally imported to control algae in fisheries on the Mississippi River, but escaped during a 1990s flood.





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Lithuania parliamentary committee confirms secret CIA prisons
Jaclyn Belczyk on December 22, 2009 1:26 PM ET

[JURIST] The Lithuanian Parliament [official website, in Lithuanian] National Security Committee reported Tuesday that the US Central Intelligence Agency (CIA) [official website] established two secret prisons [JURIST news archive] for al Qaeda suspects in the Baltic country. Lawmakers demanded the investigation [JURIST report] in October after ABC News reported in August that former CIA officials said that Lithuania provided the CIA with facilities [ABC News report] for a secret prison for high value al Qaeda suspects in order to improve relations with the US. The parliamentary committee concluded that the Lithuanian State Security Department provided the CIA with two secret facilities [AP report], but it is unclear whether either facility was used to interrogate detainees. The committee uncovered no evidence that former president Valdus Adamkus and former prime minister Algirdas Brazauskas, who were both in office during the specified time period, were told about the secret detention centers. The committee called for prosecutors to launch an immediate investigation into the State Security Department's actions.

On his third day in office last January, US President Barack Obama ordered the closure [JURIST report] of all CIA secret prisons. The European Parliament voted [JURIST report] in February 2007 to approve a report that condemned member states for cooperating with the CIA in operating secret prisons. In January 2007, the UK admitted knowledge of the CIA prison network, and then-president George W. Bush publicly acknowledged [JURIST reports] in September 2006 that these types of facilities existed. In June 2006, the Council of Europe [official website] released [JURIST report] a report [text, PDF] that 14 European countries collaborated with the CIA by taking an active or passive role in a "global spider's web" of secret prisons and rendition flights. The existence of CIA prisons in Europe was first reported in November 2005.






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China police formally arrest tainted milk scandal activist
Steve Dotterer on December 22, 2009 12:00 PM ET

[JURIST] Beijing police issued a formal arrest warrant Monday for a man who organized a website for parents whose children became ill from drinking tainted milk [JURIST news archive] last year. Zhao Lianhai has been charged [Reuters report] with picking quarrels and provoking trouble. Zhao's website, "Kidney Stone Babies" [advocacy website, in Chinese], furnishes information and resources for parents whose children were sickened or killed by melamine-tainted milk. Zhao's own four-year-old son became sick after consuming milk containing melamine, which is used in plastics and fertilizer production. Zhao was detained [NYT report] November 13, but his wife did not receive the formalized warrant for his arrest until Monday. Zhao has been held at the Daxing District Police Station since his detention. Amnesty International has expressed concern [press release] over Zhao's detention, stating that Zhao is "at risk" for torture.

Chinese courts began hearing [JURIST report] tainted milk suits in late November, after families began filing individual claims. China's Hebei Supreme Court ruled [JURIST report] out the possibility of initiating a class action lawsuit on behalf of the contaminated milk victims last year. Last month, a Chinese court sentenced [JURIST report] two men to death for their roles in the scandal. A Chinese court in February declared Sanlu Group, the Chinese company that produced the melamine-tainted milk, bankrupt [JURIST report].






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Europe rights court rules Bosnia constitution illegally discriminates
Jaclyn Belczyk on December 22, 2009 11:35 AM ET

[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text; press release] Tuesday that Bosnia's constitution [text] illegally discriminates against ethnic minorities by not allowing them to run for high political office. The Bosnian Constitution distinguishes between "constituent peoples," which include Bosniacs, Croats, and Serbs, and "others," which include Jews, Roma, and other ethnic minorities. Only "constituent peoples" are eligible to run for parliament or the three-part presidency. The complaint was filed with the ECHR in 2006 by Dervo Sejdic, a Roma, and Jakob Finci, a Jew, after Finci inquired about running for parliament or the presidency and was told that he was not eligible. The ECHR found that the Bosnian Constitution violates the European Convention on Human Rights [text, PDF], which prohibits discrimination and upholds the right to free elections. The ruling requires Bosnia to amend its constitution.

The Bosnian Constitution was agreed to in 1995 as part of the Dayton Accord [USDOS materials], ending a four-year civil war. It was designed to share power between the three majority ethnic groups, but limits power for ethnic minorities. Bosnia reached an agreement with the European Union in 2008 to bring its constitution in line with the European Convention on Human Rights.






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Sudan lawmakers adopt law on referendum for southern independence
Christian Ehret on December 22, 2009 11:02 AM ET

[JURIST] Sudanese lawmakers on Tuesday adopted a law addressing how a 2011 referendum for southern independence will be conducted. Agreed to earlier this month [JURIST report] by leaders of the ruling National Congress Party (NCP) [party website] of President Omar al-Bashir [BBC profile; JURIST news archive] and the Sudan People's Liberation Movement (SPLM) of Salva Kiir [BBC profile], the referendum will require a 60 percent voter turnout and a 51 percent affirmative vote in order to pass. SPLM lawmakers and other southern representatives withdrew from the proceedings [AFP report] in protest, concerned that the allowance of absentee voting by southerners living elsewhere will negatively affect the vote.

Under the 2005 Comprehensive Peace Agreement (CPA) [UN press release] that ended two decades of civil war, Sudan is expected to hold its first democratic multi-party elections in almost a quarter of a century in April 2010. Although the country's parliament approved the appointment [JURIST report] of an electoral commission to oversee the vote, the ruling National Congress Party (NCP) [party website] and the SPLM accused each other [JURIST report] of fraud, torture, intimidation, and sabotage as voters began registering last month. In July 2008, the parliament passed a long-anticipated electoral law [JURIST report] dictating how the country's parliamentary seats will be allotted. The law reserves some seats for candidates chosen by popular vote, and some for proportional representation of political parties including seats reserved for women.






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Pennsylvania to transfer prisoners out of state to reduce overcrowding
Jaclyn Belczyk on December 22, 2009 10:26 AM ET

[JURIST] A spokesperson for the Pennsylvania Department of Corrections [official website] said Monday that the state will begin transferring prisoners out of state to reduce prison overcrowding [JURIST news archive]. State officials will transfer 2,000 prisoners [Pittsburgh Post-Gazette report], with 1,000 going to a facility in Michigan and another 1,000 going to a Virginia prison. The transfers are scheduled to begin by February, and the state hopes to begin bringing the prisoners back by 2013, when four new prisons are set to open [Philadelphia Daily News report]. There are currently about 51,400 prisoners in a state system that was designed to house 44,000.

Pennsylvania is not the first state to transfer prisoners out of state in order to alleviate overcrowding. In 2006, California began transferring [JURIST report] prisoners out of state. California is currently under a federal court order [JURIST report] to reduce its prison population from 190 percent to 137.5 percent by 2011. Last month, the California government submitted a revised plan [JURIST report] for reducing its prison population that includes revisions made possible because of legislative enactments, such as summary parole for lower-level offenses to reduce the amount of inmates re-entering the prison system for parole violations and credit-earning enhancements to reduce time served.






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Mexico City legislature approves same-sex marriage bill
Christian Ehret on December 22, 2009 9:49 AM ET

[JURIST] Mexico City's local assembly [official website, in Spanish] approved a same-sex marriage law [text, PDF; in Spanish] on Monday, seeking to extend equal rights to gay couples throughout the city. The proposed legislation would allow for marriage, adoption, inheritance, and other human, economic, and social rights. The provisions also seek to end discrimination based on sexual orientation. Mexico City mayor Marcelo Ebrard [CityMayors profile] is expected to sign the bill [LAT report] into law, against the wishes of many of the country's Roman Catholic population.

While Mexico City's proposed legislation may be the most far-reaching in Latin America, rights for same-sex couples currently exist in Uruguay and in several Argentinian cities. Last month, some 50,000 protesters marched [JURIST report] in Buenos Aires in support of proposed legislation in Argentina's parliament. Earlier this year, Uruguay passed a law to allow same-sex couples to adopt [JURIST report].






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US hedge fund founder pleads not guilty to insider trading charges
Jaclyn Belczyk on December 22, 2009 9:29 AM ET

[JURIST] Galleon Group [partnership website] hedge fund founder Raj Rajaratnam [Financial Times profile] and former hedge fund consultant Danielle Chiesi pleaded not guilty Monday to insider trading charges. The pair were indicted [text, PDF; JURIST report] last week by a federal grand jury in Manhattan on charges of conspiracy and securities fraud for their alleged role in the largest hedge fund insider trading case in US history. Prosecutors asked the judge to schedule the trial for June or July [Bloomberg report], but Rajaratnam and Chiesi asked for more time to prepare a defense. No trial date has been set. If convicted, Chiesi, former hedge fund consultant to New Castle Partners LLC, could face up to 155 in prison. Rajaratnam faces a sentence of up to 145 years. The indictment also seeks $20.8 million in forfeiture.

Rajaratnam and Chiesi were arrested in October and charged [complaint, PDF; press release] along with four other individuals and two business entities with insider trading. The complaint alleged that the individuals, including a managing director at Intel Corp., a director at McKinsey & Co., and a senior executive at IBM [corporate websites], provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. The government of Sri Lanka has accused Rajaratnam of helping fund [Financial Times report] the Tigers of Tamil Eelam (LTTE) [JURIST news archive], a group designated as a terrorist organizations by several countries including the US. Although records show that Rajaratnam contributed money to the Tamil Rehabilitation Organization, a charity that the US claimed was a front for the LTTE, Rajaratnam denies funding the LTTE and has not been charged with funding the LTTE.






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UN report finds Guinea military junta committed crimes against humanity
Jaclyn Belczyk on December 21, 2009 3:40 PM ET

[JURIST] The Guinean military junta committed crimes against humanity during the September 28 incidents at Conakry [BBC backgrounder], according to a report by a UN fact-finding mission leaked Monday. The commission concluded [Reuters report] that military junta leader Moussa Dadis Camara [BBC profile] should be held responsible for the violence at the pro-democracy rally in which soldiers allegedly opened fire, killing more than 150 civilians and wounding more than 1,200. The report was received [press release] by UN Secretary-General Ban Ki-Moon [official profile] last week and sent to the UN Security Council [official website] for review. The Security Council is now holding closed-door consultations on the report, and it is unclear what, if any, steps will be taken. Camara currently remains hospitalized, having been shot and wounded by one of his own soldiers earlier this month.

In October, the Security Council called for an investigation [JURIST report] into the alleged human rights abuses. Earlier that month, Guinean Minister of Foreign Affairs Alexandre Cece Loua [GuineeNews profile] said during a visit to the International Criminal Court (ICC) [official website] that the Guinean judiciary is capable of and intends to investigate [JURIST report] and prosecute any crimes committed during the incidents of September 28. The Guinea junta has created a National Commission for an Independent Investigation that will work with the committee established [JURIST report] by Ban to look into possible human rights abuses by Guinean soldiers. The ICC has placed the Guinean military under preliminary investigation [JURIST report] for human rights violations during the Conakry incident.






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WTO rejects China appeal on US media imports
Jaclyn Belczyk on December 21, 2009 2:15 PM ET

[JURIST] The World Trade Organization (WTO) [official website] on Monday rejected [report, PDF] a Chinese appeal of an August ruling [text, PDF] that Chinese controls on US imports of books, music, and audiovisual materials violate international trade regulations. The dispute [case materials] originally arose in April 2007 when the US filed a complaint over Chinese restrictions allowing certain state-owned companies to reserve the right to import types of entertainment media, effectively forcing US companies to conduct business with only those business channels. The complaint also challenged market access restrictions on foreign service providers. The WTO originally held that while China may still censor certain media content, it may not use censorship as a justification for barriers on trade, and China appealed [JURIST report] that decision. WTO judges rejected the appeal, concluding that China had not produced any evidence to show that the original panel had erred in its ruling. US Trade Representative Ron Kirk [official profile] welcomed the ruling [press release] as a "big win" for the US. Chinese officials did not comment. Monday's ruling is final and cannot be appealed, but made no recommendations as to how China should comply with the decision.

Monday's ruling is the latest result in the struggle for intellectual property rights between the US and China. In January, a dispute settlement panel of the WTO found [report, PDF; JURIST report] for the US that large parts of China's intellectual property scheme are inconsistent with its obligations under several international treaties, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [text]. The panel's findings came as the result of a process initiated against China by the US [JURIST report] in August 2007 for alleged lax enforcement of copyright and trademark violations [JURIST report; WTO backgrounder]. The panel's report concluded that certain provisions of China's copyright law as well as certain Chinese customs measures are inconsistent with TRIPS because they "nullify or impair benefits accruing to the United States."






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FBI report shows decrease in US violent crime for first half of 2009
Jaclyn Belczyk on December 21, 2009 1:26 PM ET

[JURIST] Violent crime in the US decreased 4.4 percent in the first half of 2009, according to the FBI's Preliminary Semiannual Uniform Crime Report [materials; press release] published Monday. Specifically, murder decreased 10 percent, robbery dropped 6.5 percent, forcible rape fell 3.3 percent, and aggravated assault decreased 3.2 percent. While violent crime rates dropped across the country as a whole, in cities of populations between 10,000 and 24,999, violent crime increased 1.7 percent. Additionally, property crime has continued to decrease for the sixth year in a row. The 2009 preliminary report only covers the period of January through June, and a full 2009 report will be released next year.

The drop follows a 1.9 percent decrease for 2008 and a 0.7 percent decrease [JURIST reports] for 2007. That came after two years of increasing rates of similar crimes, including a 2006 increase of 1.3 percent and a 2005 increase of 2.3 percent [JURIST reports].






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UN accuses Uganda rebels of war crimes in DRC and Sudan
Sarah Miley on December 21, 2009 1:26 PM ET

[JURIST] The UN on Monday called for leaders of the Ugandan Lord's Resistance Army (LRA) [BBC backgrounder] to be apprehended [UN News Centre report] for war crimes in southern Sudan and the Democratic Republic of the Congo (DRC) between September 2008 and June 2009. The LRA is accused of killing, raping, and mutilating more than 1,200 men, women, and children, abducting at least 1,400 civilians, and displacing almost 300,000 others. UN High Commissioner for Human Rights Navi Pillay [official profile] called for the rebel leaders to be tried by the International Criminal Court (ICC) [official website] after releasing two joint reports [text, PDF] with the UN Missions in Sudan and the DRC::


These attacks and systematic and widespread human rights violations carried out by the LRA since mid-September 2008 against Congolese civilians during the armed conflict may constitute war crimes and crimes against humanity for which there is no statute of limitations under international law. It should be recalled that the Rome Statute of the International Criminal Court defines certain human rights violations as crimes against humanity. These acts, committed with knowledge as part of a widespread or systematic attack against any civilian population include, inter alia, murder, torture, rape, sexual slavery and enforced disappearance of persons.

Pillay called for the international community to help apprehend LRA leaders.

In May 2008, Uganda created the High Court of Uganda [JURIST report], which will have the authority to try LRA leaders. There is speculation that the the war crimes court was created to persuade the ICC to drop arrest warrants currently out for the LRA leaders, a conclusion supported by the LRA's refusal to sign a final peace agreement [JURIST report] unless the warrants are suspended. The ICC has repeatedly called for the arrest of the men, and has not conceded to Ugandan requests that the charges be dropped [JURIST reports]. The ICC issued arrest warrants [JURIST report] for LRA rebel leader Joseph Kony and his deputies in October 2005 for 33 counts of war crimes and crimes against humanity against Ugandan citizens including murder, rape, sexual enslavement, and conscription of children. The LRA has been notorious for its violent attacks on Ugandan citizens since its formation in 1986, and in recent years has expanded into Sudan and the DRC after being driven out of Uganda. Kony has insisted that he his not guilty [JURIST report] of the atrocities attributed to him, describing himself as a "freedom fighter" rather than a criminal.





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Israel ex-PM Olmert pleads not guilty to corruption charges
Jaclyn Belczyk on December 21, 2009 12:22 PM ET

[JURIST] Former Israeli prime minister Ehud Olmert [official profile; JURIST news archive] pleaded not guilty Monday to charges of fraud and corruption that led to his resignation last year. Olmert is accused of illegally accepting cash contributions from American businessman Moshe Talansky, double billing [JURIST reports] travel expenses to the state and charitable donors, and giving his former law partner Uri Messer access to state information. Olmert denied all charges [Haaretz report] against him Monday in his first public response to the allegations. The court is due to begin hearing testimony in the trial on February 22. If convicted, Olmert faces up to five years in prison on each count.

Olmert's trial, the first of a former or current Israeli prime minister, comes after three years of allegations that he abused his official powers during his time as mayor of Jerusalem and minister of industry, trade, and labor. Proceedings began [JURIST report] in September after Attorney General Menahem Mazuz [official profile] formally indicted [JURIST report] Olmert in August, but the trial was postponed until February to allow Olmert to gather evidence necessary for his defense. In April 2007, Olmert was investigated for improperly favoring his supporters [JURIST report] in distributing business grants during his time as trade minister. In January 2007, the Israeli Ministry of Justice announced plans to launch an investigation [JURIST report] into allegations that he promoted the interests of two business associates during the 2005 state sale of Bank Leumi [corporate website].






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Full Myanmar high court to weigh Suu Kyi appeal
Jaclyn Belczyk on December 21, 2009 11:03 AM ET

[JURIST] Myanmar's Supreme Court on Monday agreed to hear an appeal by opposition pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] against the 18-month extension of her house arrest. The decision for the full court to hear her appeal came as the result of a preliminary hearing held Monday, after the court initially agreed to consider the appeal [JURIST report] earlier this month. Suu Kyi's lawyers filed the appeal last month after a lower court rejected [JURIST reports] an earlier appeal. They argue that her conviction should not stand because it is based on the now-defunct 1974 constitution. No date has been set for the appeal hearing.

The extension of Suu Kyi's house arrest stems from an August conviction [JURIST report] for violating state security laws by allowing American John Yettaw to stay in her home after he swam across a lake to get there. Yettaw, who was sentenced to seven years in prison with four years of hard labor, was released [JURIST report] in August after negotiations with US Senator Jim Webb (D-VA). Suu Kyi was initially sentenced to three years in prison with hard labor, but her sentence was immediately commuted by junta chief General Than Shwe. Suu Kyi has spent 14 of the last 20 years in detention, and her latest conviction has been condemned [BBC report] by many world leaders as a political move to prevent her from running in the upcoming elections. Her conviction has given rise to international sanctions [JURIST report] against Myanmar's junta and members of the judiciary.






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Cambodia war crimes court charges fourth former Khmer Rouge leader with genocide
Christian Ehret on December 21, 2009 10:29 AM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday charged former Khmer Rouge [BBC backgrounder; JURIST news archive] leader Ieng Thirith [Trial Watch profile; case materials] with genocide, torture, and persecution, adding to previous charges that include war crimes and murder. Ieng Thirith, the wife of ECCC defendant Ieng Sary [Trial Watch profile; JURIST news archive], served as social affairs minister [Reuters report] for the regime that allegedly caused the death of 1.7 million people between 1975 and 1979. The latest charges stem from the deaths of thousands of Vietnamese and ethnic Cham Muslims. Known as the "Khmer Rouge First Lady," Ieng Thirith was originally arrested [JURIST report] in 2007, along with her husband.

Ieng Thirith is the fourth former official to be charged with genocide. Last week, the ECCC brought genocide charges against former head of state Khieu Samphan, former deputy leader and chief ideologist Nuon Chea, and former foreign minister Ieng Sary [JURIST reports] in connection with the same events. Last month, the court heard final arguments [JURIST report] in its first trial, that of Kaing Guek Eav [Trial Watch profile; JURIST news archive], also known as "Duch." Kaing was the first of eight [JURIST report] ex-Khmer Rouge officials to be tried before the ECCC. A verdict is expected in March.






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Senate vote closes debate on proposed health care reform bill
Christian Ehret on December 21, 2009 9:31 AM ET

[JURIST] The US Senate [official website] agreed on Monday to close the debate [roll call vote] on proposed health care reform legislation [HR 3590 materials], making way for a vote expected Thursday. The agreement was reached by a narrow 60 to 40 vote, requiring every Democrat and Independent vote available. The proposed bill seeks to extend health insurance coverage and prohibit insurance companies from discriminating based on pre-existing conditions. Legal residents would be required to obtain health insurance under the legislation, with subsidies existing for those who cannot afford it. Senate Republican leader Mitch McConnell (R-KY) [official website] criticized the bill [press release] for its high cost and ineffectiveness, stating that it is inconsistent with President Barack Obama's proposed goals.

Health care reform [JURIST news archive] has been a top priority of the Obama administration for several months. Last month, the US House of Representatives [official website] approved [JURIST report] their reform bill, the Affordable Health Care for America Act [HR 3962 materials]. The House legislation has an estimated cost of around $1 trillon [WSJ report] over 10 years, includes a public option, and would extend coverage to nearly 96 percent of Americans. Like the Senate bill, the House version prohibits discrimination based on pre-existing conditions.






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US transfers 12 more Guantanamo detainees
Jonathan Cohen on December 20, 2009 12:00 PM ET

[JURIST] The US has transferred [DOJ press release] 12 more Guantanamo Bay [JURIST news archive] detainees to their home governments, the Justice Department announced Sunday. Describing the transfers as having taken place "over the weekend", the Department indicated that

four Afghan detainees, Abdul Hafiz, Sharifullah, Mohamed Rahim and Mohammed Hashim, were transferred to the Government of Afghanistan. In addition, two Somali detainees, Mohammed Soliman Barre and Ismael Arale, were transferred to regional authorities in Somaliland. Finally, six Yemeni detainees, Jamal Muhammad Alawi Mari, Farouq Ali Ahmed, Ayman Saeed Abdullah Batarfi, Muhammaed Yasir Ahmed Taher, Fayad Yahya Ahmed al Rami and Riyad Atiq Ali Abdu al Haf, were transferred to the Government of Yemen.
Earlier this week, a judge for the US District Court for the District of Columbia [official website] granted Yemeni Guantanamo Bay detainee Saeed Hatim's petition for habeas corpus, ordering his release. Hatim's release came just two days after Judge Thomas Hogan denied [transcript, PDF] Yemeni Guantanamo detainee Musa'ab Al-Madhwani's petition for habeas corpus, ruling that the government may continue to detain him [JURIST report].





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Iran prison officials charged with murder of detainees
Jay Carmella on December 20, 2009 10:00 AM ET

[JURIST] The Iranian government announced Saturday that murder charges have been brought against prison officials in connection with the deaths of three detainees involved in protests that followed the June 12 presidential election [JURIST news archive]. Twelve officials will face murder charges [Tehran Times report], with three facing the charge of premeditated murder for their role in the incidents. The Iranian government acknowledged [JURIST report] in August that the detainees had been tortured, yet initially claimed that the three men had died from meningitis. The prison coroner later found that the physical abuse was the sole cause of death for all three prisoners. Critics believe [CNN report] that the charges are merely a political move by the Iranian government.

The Iranian government has faced significant international scrutiny for its handling of the protests, which included thousands of arrests. Last week, Amnesty International (AI) [advocacy website] labeled [JURIST report] the human rights violations committed by the Iranian government following the election among the worst of the past 20 years. In September, human rights groups called for [JURIST report] the UN General Assembly [official website] to appoint a special envoy to investigate allegations of the violations. Alleged human rights abuses of detainees include sexual assault, beatings, and forced confessions [JURIST reports].






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No legally binding agreement on climate change reached at UN summit
Ann Riley on December 19, 2009 12:22 PM ET

[JURIST] While no legally binding agreement was reached at the conclusion of the UN Climate Change Conference (COP15) [official website] in Copenhagen, Denmark, 192 UN member countries agreed Saturday to “take note” [press release] of a non-binding Copenhagen Accord [text, PDF] developed by leaders of the United States, China, India, Brazil, and South Africa aspiring to limit the global temperature rise to below 2 degrees Celsius and establishing a Copenhagen Green Climate Fund to assist poor nations in reducing the effects of climate change [JURIST news archive]. The Accord also establishes Annexes where countries will pledge, but not be legally bound, to national targets for emission reductions by 2020. UN Secretary-General Ban-Ki Moon [official website] emphasized [text] the importance of turning the agreement into a legally binding treaty. Ban said:

The Copenhagen Accord may not be everything that everyone hoped for. But this decision of the Conference of Parties is a new beginning, an essential beginning…We have the foundation for the first truly global agreement that will limit and reduce greenhouse gas emission, support adaptation for the most vulnerable, and launch a new era of green growth.
The COP15 conference was originally designed to produce a global climate change treaty to replace the Kyoto Protocol [text, PDF; JURIST news archive], which expires in 2012. Earlier this month, Ban announced [JURIST report] that a legally binding treaty should be ready in 2010. Before the opening of the COP15, however, Ban, US President Barack Obama and Director of the UN secretary-general's Climate Change Support Team Janos Pasztor [JURIST reports] expressed doubt that a legally-binding agreement could be reached during the conference. Negotiations on the new climate change treaty began [JURIST report] last year in Bangkok. In October, a UN official working on preparations for COP15 said US hesitancy to pass a climate bill could doom the conference [JURIST report]. The US never signed the Kyoto Protocol, but in March this year, the US Special Envoy on Climate Change announced [JURIST report] that the US under the Obama administration is committed [video] to the creation of an international treaty designed to combat global warming, although he added that such efforts will only succeed if they are economically feasible.





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Second Circuit rules for government in post-9/11 detention case
Jonathan Cohen on December 19, 2009 10:02 AM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [decision; PDF] Friday that post-arrest detention is legal in cases where the detainees are reasonably detained. The case, Turkmen v. Ashcroft [CCR backgrounder], challenged the alleged racial profiling, arbitrary detention and abuse of Muslim, Arab, and South Asian men swept up after 9/11. This most recent ruling affirms that immigration law can be used as a pretext for detention, and that there is "no authority clearly establishing an equal protection right to be free of selective enforcement of the immigration laws based on national origin, race, or religion at the time of plaintiffs’ detentions." The Second Circuit did not dismiss claims of abuse against upper level officials, and the Center for Constitutional Rights (CCR) [advocacy website] said in a press release that

we are still seeking justice. This ruling allows us the possibility of moving forward against high-level officials, and we will. This is an important case: immigration law cannot be used as a short-cut around the Fourth Amendment.
Even though the government admitted to no wrongdoing, it settled with five of the plaintiffs [JURIST report] for $1.26 million last month. In 2007, a district court judge granted the government's motion to dismiss [text, PDF] a number of the claims, but refused to dismiss the abuse claims. Also in 2007, the government criminally charged [JURIST report] several guards at the Metropolitan Detention Center in Brooklyn official website], the location in which men were detained, with abusing prisoners.





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France judge orders probe of Chirac corruption allegations
Jaclyn Belczyk on December 18, 2009 3:27 PM ET

[JURIST] A French judge on Friday placed former French president Jacques Chirac [official profile; JURIST news archive] under preliminary investigation over allegations that he misused public funds while serving as mayor of Paris from 1977 to 1995. Chirac is accused of financing the Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French], by illegally establishing fake city positions for party members to collect salaries totaling several million dollars. He met with Judge Jacques Gazeux Friday morning and was informed that he had been placed under formal investigation [Le Monde report, in French]. Chirac has denied any wrongdoing but could face up to five years in prison if convicted. Prosecutors must now decide whether to bring formal charges.

Chirac was ordered to stand trial [JURIST report] on related charges of embezzlement and misuse of public funds in October. Following this order, Chirac will be the first former French president to stand trial since the formation of the current Republic in 1958. The charges were originally filed in 2007 [JURIST report] after Chirac's presidency ended and he no longer had judicial immunity. In July 2007, French investigating magistrates questioned Chirac as a material witness [JURIST report] in their probe of the corruption allegations.






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US execution rate now half that of decade ago: report
Steve Czajkowski on December 18, 2009 1:30 PM ET

[JURIST] The number of executions that took place in the US in 2009 was down 47 percent from 10 years ago, according to the Death Penalty Information Center (DPIC) [advocacy website] annual report [text, PDF; press release, PDF] released Friday. There were 52 executions in 2009, compared to 98 in 1999. The report also emphasized that the number of death sentences handed down in 2009 - 106 - is the lowest since the US Supreme Court [official website] reinstated the death penalty in 1976. According to the report, the rate of death sentences has been falling for the past seven years, and there is expanding support for putting an end to the death penalty:

In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty.

Also this year, a nationwide poll of police chiefs showed that the death penalty is at the bottom of priorities among those with experience in law enforcement. The chiefs did not believe the death penalty acted as a deterrent, and they rated it as one of the most inefficient uses of taxpayer money in fighting crime. Challenges to the death penalty came from all quarters, including former Texas Governor Mark White and conservative strategist Richard Viguerie, who expressed doubts about the reliability of this governmental program.
While the report did show that the number of executions increased from 37 in 2008, it attributed those numbers to a backlog of cases resulting from a de facto moratorium [JURIST report] on the death penalty.

The trends are similar to those observed in the DPIC's 2008 report [text, PDF; JURIST report]. Last year, executions in the US were at a 14-year low and the number of death sentences had dropped 60 percent since the 1990s. In 2008, 95 percent of executions took place in the South, compared to 87 percent for 2009. Executions resumed in the US in April 2008 after the US Supreme Court lifted an effective ban on the death penalty by upholding the constitutionality of lethal injection [JURIST report].





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Cambodia war crimes court charges former Khmer Rouge leader with genocide
Steve Czajkowski on December 18, 2009 12:33 PM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Friday charged Khieu Samphan [Trial Watch profile; JURIST news archive], the former head of state during the Khmer Rouge [BBC backgrounder; JURIST news archive] regime, with genocide for his involvement in the deaths of thousands of Vietnamese and ethnic Cham Muslims. While not denying the killings took place, Samphan has denied culpability [BBC report], saying he was not directly responsible. Samphan also faces domestic charges [AFP report] including torture, religious persecution, and murder. Samphan had previously been charged [order, PDF; JURIST report] with war crimes and crimes against humanity.

Samphan is the third member of the Khmer Rouge to be charged with genocide [JURIST report] this week. Former deputy leader and chief ideologist Nuon Chea and foreign minister Ieng Sary [Trial Watch profiles] were charged [case materials] with genocide on Wednesday in connection with crimes allegedly committed against Vietnamese people and ethnic Cham Muslims. Both defendants have already been charged with breaches of the Geneva Convention [ICRC backgrounder] and crimes against humanity. The Khmer Rouge is generally held responsible for the genocide of an estimated 1.7 million Cambodians [PPU backgrounder] who died between 1975 and 1979.






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France court rules Google book search violates copyright laws
Jaclyn Belczyk on December 18, 2009 12:03 PM ET

[JURIST] A French court ruled Friday that Google [corporate website] violated French copyright law through its book-scanning initiative [Google Books website]. The Parisian court fined Google €300,000 euros (USD $430,000) for digitizing books and making excerpts available on the web. The challenge was brought in 2006 by French publishing group La Martiniere, along with the French publisher's union Syndicat National de l'Edition (SNE) and the writers' society Societe des Gens de Lettres (SDGL) [websites, in French]. The head of the SNE expressed satisfaction [BBC report] with the verdict. Also this week, a Chinese court agreed to hear [FT report] a challenge to Google's digital books project.

While Friday's ruling is the first time a court has condemned Google's book scanning initiative, the company has also faced legal challenges in the US. Last year, Google agreed to settle [JURIST report] two copyright infringement lawsuits. Under the terms of the initial agreement, 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. Last month, a US judge granted an extension to file an amended settlement agreement after the Department of Justice urged the court to reject the settlement [JURIST reports] over class action, copyright, and antitrust law concerns.






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UK traveler data program may violate EU law: legislative report
Jay Carmella on December 18, 2009 11:53 AM ET

[JURIST] The UK's 1.2 billion-pound e-Borders [official website] program initiated by Prime Minister Gordon Brown [official profile; JURIST news archive] will likely be found illegal under European Union (EU) law, the British House of Commons Home Affairs Committee [official website] reported [text, PDF; press release] Friday. The program was intended to provide the UK Border Agency (UKBA) [official website] with a more effective and efficient security system by collecting and analyzing information on all passengers entering or leaving the UK. Under EU law, member states are not permitted to require additional passenger information other than a valid identification document except in extreme circumstances. According to the report, the program also potentially violates other member states' data protection laws. The report states:


All our witnesses expressed concerns about whether the e-Borders programme was compatible with EU law, and in particular the principle of free movement of people. The EU Directive cited by UKBA as a basis for its project relates to the transport of passengers by air over EU's external borders. Moreover, the carriers were concerned that other EU countries to which their services travelled were increasingly questioning the legality of requiring their citizens to provide data, rather than simply producing a form of identification (passport or ID card) before they were allowed to travel to the UK.

The British lawmakers believe it is important for the program to be put on hold [Bloomberg report] pending further review of its legality.

The British government had hoped to have the e-Borders program operating at 60 percent of capacity by December 2009. The program, which is a collaborative effort between the UKBA and Trusted Borders [corporate website], was expected to be fully operational, covering all international passengers by March 2014. This is not the first time that the British government has raised flags at the EU over privacy issues. In April, the European Commission (EC) [official website] notified [JURIST report] the UK that it started infringement proceedings against the UK for failure to follow EU Internet privacy and data protection rules.





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Mumbai terror attack suspect withdraws confession
Jaclyn Belczyk on December 18, 2009 11:09 AM ET

[JURIST] Suspected Mumbai terror attack [BBC backgrounder; JURIST news archive] gunman Mohammad Ajmal Amir Kasab [NDTV profile] withdrew his confession in an Indian court Friday, claiming he was tortured and framed by police. Kasab originally pleaded not guilty in May, but interrupted his trial in July to confess and change his plea to guilty [JURIST reports]. Presiding Judge Judge ML Tahilyani continued the trial [JURIST report] despite Kasab's confession, ruling that it was incomplete but should be entered into the record. On Friday, Kasab claimed that he is not the man [Times of India report] seen in a photograph holding an assault rifle in the train station. Kasab testified that he had been arrested by police days before the attacks for being Pakistani and that police shot him to make it look like he had been injured during the attacks. He also claimed to have met David Headley, the Chicago man charged [JURIST report] last week in connection with the attacks, but only after the attacks when Headley allegedly came to question Kasab in the company of three FBI agents. A verdict is expected early next year, and, if convicted, Kasab could face the death penalty.

Last month, Tahilyani removed Kasab's defense lawyer Abbas Kazmi [Times of India profile] after finding that Kazmi lied when he denied being informed of the Special Public Prosecutor's intent to examine 340 more witnesses of the attack. Kazmi, who was replaced by his assistant, was not the first defense lawyer to be removed from the high profile case. Advocate Anjali Waghmare was removed [JURIST report] in April for ethical violations after agreeing to represent both the accused and a victim of the attack. Kasab faces 86 charges [Reuters backgrounder], including waging war on India and murder, for his role in the November 2008 attacks that claimed 166 lives.






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DOJ to increase enforcement of hate crime laws
Jay Carmella on December 18, 2009 10:23 AM ET

[JURIST] US Assistant Attorney General Tom Perez [official profile] said Thursday that the Civil Rights Division of the Department of Justice (DOJ) [official websites] plans to increase its efforts to prosecute hate crimes. The DOJ brought 25 federal hate crime cases [AP report] during the first year of the Obama administration, which is the highest annual number since 2001. The number had fallen as low as 12 in 2006. According to Perez, this was not due to the lack of hate crimes in the country, but rather a lack of enforcement during the Bush administration. Perez said he plans to hire more than 100 new employees in the Civil Rights Division to increase enforcement of all civil rights laws.

The announcement from the Civil Rights Division comes the same week that it filed hate crime charges [NYT report] in the beating death of a Mexican immigrant last year. Earlier this month, the US Government Accountability Office (GAO) [official website] reported [JURIST report] that enforcement of various civil rights laws, including hate crimes laws, decreased during the Bush administration. In September, US Attorney General Eric Holder [official profile] said that the DOJ planned to expand its Civil Rights Division [JURIST report] and more actively enforce anti-discrimination laws. The increased focus on civil rights marks a change in focus from the previous administration, which, according to the New York Times [NYT report; JURIST report], shifted resources from preventing racial discrimination to protecting religious rights.






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Congress could block Guantanamo detainees in Illinois: House Republican leader
Jaclyn Belczyk on December 18, 2009 10:12 AM ET

[JURIST] US House of Representatives minority leader John Boehner (R-OH) [official websites] said Thursday that Congress could potentially block the Obama administration's plan to purchase [JURIST report] the Thomson Correctional Center (TCC) [DOC backgrounder] in northwestern Illinois to house inmates from Guantanamo Bay [JURIST news archive]. Boehner said that at least two pieces of legislation would have to be approved before the detainees could be brought to Illinois and that he doubts either bill would pass [Chicago Sun-Times report]. Under current law [JURIST report], Guantanamo detainees may only be transferred to the US for prosecution, so that law would have to be changed. Congress would also have to pass a bill approving funding for the project. Boehner warned that he would not support war funding bills with either provision attached. A White House spokesperson vowed to work closely with Congress [Reuters report] until Guantanamo is closed.

Earlier this week, US Attorney General Eric Holder [official profile] said that the decision to purchase the TCC could help close the Guantanamo prison facility [JURIST report] over the next several months. Holder expects the detention center to be closed by summer or early next fall at the latest. In October, Holder announced that the Obama administration would most likely miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials. US President Barack Obama originally issued the executive order to close Guantanamo within a year [JURIST report] last January 22, two days after taking office.






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Pakistan court issues arrest warrant for interior minister after amnesty struck down
Jaclyn Belczyk on December 18, 2009 9:02 AM ET

[JURIST] A Pakistani court on Friday issued an arrest warrant for Interior Minister Rehman Malik [official profile] on corruption charges, following Wednesday's Supreme Court [official website] ruling striking down an amnesty order [JURIST report]. The Supreme Court ruled [order, PDF] that the National Reconciliation Ordinance (NRO) [text], which granted immunity to President Asif Ali Zardari [official website] and 8,000 other government officials from the ruling Pakistan Peoples Party (PPP) [party website], is unconstitutional. Malik is among 19 officials whose corruption cases the National Accountability Bureau (NAB) [official website] has petitioned to reopen [PTI report] in an anti-corruption court in Rawalpindi. The NAB has also petitioned a Lahore court to reopen the cases of 32 individuals, including that of Defense Minister Chaudhry Ahmed Mukhtar [official profile]. That court has already issued three notices to appear, including one to PPP secretary general Jahangir Badr. The NAB has banned 247 individuals from leaving the country, including Malik and Mukhtar, and Mukhtar was prevented from going on an official visit to China Thursday night. Zardari called an emergency meeting [Dawn report] of Pakistan's top ministers Friday to discuss the current political situation.

The court began hearing [JURIST report] the legal challenge to the NRO earlier this month. The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007 as part of a power-sharing accord allowing former Pakistani prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges [JURIST report] she had faced. The ordinance also applies to similar charges against politicians who were charged, but not convicted, of corruption between 1988 and 1999.






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Russia rights activist urges EU to hold country accountable for abuses
Ann Riley on December 18, 2009 8:21 AM ET

[JURIST] Russian human rights activist Sergei Kovalev on Wednesday urged the European Union (EU) [official website] to hold Russia accountable for human rights violations, in a speech after receiving the Sakharov Prize for Freedom of Thought [official website]. Kovalev, joined by Oleg Orlov and Lyudmila Alexeyeva, accepted the award [press release] on behalf of Russian human rights group Memorial [advocacy website, in Russian]. Addressing the European Parliament [official website], Kovalev said that ignoring sensitive human rights issues [text] would only harm Russia, continue human rights abuse, and impair European values. Kovalev accused the EU of not making full use of its unity to pressure Moscow to resolve the human rights violations in Russia:


[Europe] should act towards Russia just as it does towards any other European country that has taken on certain obligations and has a responsibility to meet them. Alas, today, Europe increasingly rarely formulates its recommendations to Russia in the area of democracy and human rights, sometimes even preferring not to mention them at all…It is Europe's duty not to remain silent but, again and again, to repeat and remind, and insist respectfully and firmly that Russia meet its obligations.

Awarded by the European Parliament, the Prize for Freedom of Thought is named in honor of the late Russian human rights activist and founder of Memorial, Andrei Sakharov [official profile]. European Parliament President Jerzy Buzek [official profile] attributed the award to Memorial activist, Natalia Estemirova [BBC obituary], who was murdered [JURIST report] in July.

In October, a report by the UN Human Rights Committee [official website] found [JURIST report] that Russia is failing to protect important human rights in a number of areas. The report specifically criticized Russian actions in Chechnya [JURIST news archive]. Recent violence has reportedly caused Russian human rights activists to leave the region [JURIST report], with Memorial closing its Chechen offices after the death of Estemirova.





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Spain congress approves bill easing abortion laws
Jaclyn Belczyk on December 17, 2009 2:36 PM ET

[JURIST] Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish] on Thursday approved [press release, in Spanish] a bill [text, PDF; in Spanish] that would ease restrictions on abortions [JURIST news archive]. The bill passed by a vote of 183-158 with two abstentions. Current Spanish abortion law dates from 1985, after the end of the Franco regime. Abortions are permitted only in the case of rape, up to 12 weeks, severe fetal malformation, up to 22 weeks, or if the woman's physical or mental health is in danger. Under the proposed legislation [El Pais report, in Spanish], abortion would be permitted up to 14 weeks for any reason and up to 22 weeks if there is severe fetal malformation or a serious risk to the mother. Women aged 16 or 17 would also be allowed to have an abortion without parental consent, but would have to inform their parents. The bill must now go before the Senate [official website, in Spanish].

In October, hundreds of thousands of protesters rallied in Madrid [JURIST report] in opposition to the proposed legislation. Spain's Council of State approved the bill [JURIST report] in September. The changes were proposed [JURIST report] in March by a panel of legal and medical experts led by Minister of Equality Bibiano Aido [official website, in Spanish], eliciting widespread protests [JURIST report] throughout Spain. The panel was formed [JURIST report] last September at the request of Prime Minister Jose Luis Rodriguez Zapatero [official profile, in Spanish] as part of a series of social reforms that have included same-sex marriage [JURIST report] and streamlined divorce proceedings. The conservative Popular Party [party website, in Spanish] has repeatedly expressed the opinion [El Pais report, in Spanish] that relaxed abortion laws would stand in opposition to Article 15 of the Spanish Constitution [text, in Spanish], which guarantees the right to life. Spanish abortion laws [BBC backgrounder] are among the most restrictive in European nations.






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Russia high court to review arrest of former Yukos oil executive
Jaclyn Belczyk on December 17, 2009 1:29 PM ET

[JURIST] The chief justice of the Russian Supreme Court [official website, in Russian] on Thursday ordered a review of the 2003 arrest of Platon Lebedev [defense website], business partner of former Yukos oil executive Mikhail Khodorkovsky [defense website; JURIST news archive]. The decision came after the European Court of Human Rights (ECHR) [official website] ruled [JURIST report] in 2007 that Lebedev's arrest and pre-trial detention violated his right to liberty and security under Article 5 of the European Convention on Human Rights [text, PDF]. The ECHR awarded awarded Lebedev more than USD $4,300 in damages and almost $10,000 to cover legal fees. The review could be considered as soon as next week [AP report]. If the court finds that Lebedev's rights were violated, he could receive a new trial.

Platon and Lebedev are serving an eight-year prison sentence after being convicted [JURIST report] in 2005 on fraud and tax evasion charges stemming from an alleged attempt to embezzle and strip Yukos of valuable assets. The two are currently on trial on additional related charges of money laundering and embezzlement, to which they have pleaded not guilty [JURIST reports]. They could face up to 20 additional years in prison if convicted. 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].






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South Korea court issues arrest warrant for former PM on bribery charges
Jaclyn Belczyk on December 17, 2009 12:16 PM ET

[JURIST] A South Korean court on Wednesday issued an arrest warrant for former prime minister Han Myeong-sook on bribery charges. Han is accused of accepting USD $50,000 from former Korea Express CEO Kwak Young-wook in 2007 in exchange for helping him become president of Korea South-East Power Co., an affiliate of the state-run Korea Electric Power Corporation [corporate websites]. Han, a senior adviser to the main opposition Democratic Party, has denied the allegations [Korea Times report], calling the charges politically motivated. It is unclear whether authorities will exercise the arrest warrant or continue to seek voluntary cooperation, but Han has already ignored two subpoenas issued earlier this month. An indictment could be issued [JoongAng Daily report] next week.

Han served as the country's first female prime minister under president Roh Moo-hyun [BBC obituary; JURIST news archive] from April 2006 - March 2007. Roh, who was himself the target of a bribery investigation, died [JURIST report] in May from an apparent suicide. Shortly before his death, prosecutors had questioned Roh on suspicion that he accepted up to $6 million in bribes from Park Yeon-cha, a financial supporter who is also CEO of a shoe manufacturing company. Roh admitted that his wife had received $1 million from Park, but said the money was a loan rather than a bribe. Roh became president in 2003 after campaigning heavily against corruption.






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France conservative leader to introduce bill to ban burqas in public
Amelia Mathias on December 17, 2009 11:00 AM ET

[JURIST] The leader of France's conservative party, the Union for a Popular Movement (UMP) [party website, in French] announced Wednesday that he will introduce legislation banning the burqa [JURIST news archive] in public. Jean-Francois Cope's announcement [Le Figaro report, in French] comes at the end of a six-month investigation by a special commission into the causes, effects, and ramifications of Muslim women wearing the burqa in France. Also Wednesday, French Immigration Minister Eric Besson [official profile, in French] announced that he would seek to deny French citizenship [NYT report] to any woman choosing to wear the burqa in public, saying that it showed a lack of commitment to integrate in France. Besson has also called for a public debate on the definition of French culture, to be wrapped up in January.

Cope's announcement is in direct opposition to the National Assembly's November decision not to push for specific legislation [JURIST report] banning the burqa. The commission began its hearings in July after being established [JURIST report] a month earlier to address the issue. The controversy between the Muslim community and the secular French government has gone on for several years. In December 2008, the European Court of Human Rights (ECHR) [official website] unanimously ruled [JURIST report] that there was no human rights violation when a French school expelled two Muslim students for refusing to remove their headscarves. Last July, a Muslim woman's citizenship application was denied [JURIST report] because she failed to assimilate to French culture and practiced a type of Islam found incompatible with French values. In 2004, France passed a law [JURIST report] banning students from conspicuous religious items, including Muslim headscarves, in schools.






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Switzerland bank to pay fines for violating US sanctions against Iran
Amelia Mathias on December 17, 2009 10:06 AM ET

[JURIST] Credit Suisse [corporate website], Switzerland's second largest bank, agreed [DOJ press release] Wednesday to pay more than $500 million in fines to both the US government and New York state for violating US sanctions against Iran and other countries. According to a criminal information filed Wednesday, Credit Suisse violated the International Emergency Economic Powers Act (IEEPA) [text, PDF] between 2002 and 2007 by helping businesses from Iran, Cuba, Sudan, Libya, and Myanmar get around American banking laws. Allegations include that Credit Suisse employees put together a pamphlet for Iranian clients, instructing them how to disguise their forms [Washington Times report] in order to escape notice and gain access to American markets. US Attorney General Eric Holder commented [remarks]:

The sanctions put in place against these countries have been deemed appropriate and necessary by numerous Administrations, and are followed by hundreds of financial institutions around the globe. And these rules matter - they keep dollars out of the hands of countries and individuals that threaten U.S. interests abroad and our national security here at home.

The U.S. financial system is built on trust and transparency. Our banks must know what payments they are processing and for whom. Credit Suisse's decades-long scheme to flout the rules that govern our financial institutions robbed our system of the legitimacy that is fundamental to it success. We cannot let this stand, and today's settlement sends a strong message that we will not let it stand.
Two of the Iranian organizations involved were the Atomic Energy Organization of Iran and the Aerospace Industries Organization, both of which are accused of proliferating nuclear weapons.

In January, Lloyds TSB [corporate website], a London-based bank, paid $350 million in fines [NYT report] resulting from transactions originating in Iran, Sudan, and Libya. In that case, it is still unclear what Iranian organizations started the transactions. IEEPA has been used since the 1930s to regulate and restrict the access of foreign powers to American financial markets. Iran has been restricted under IEEPA since the 1979 hostage crisis and has continued to be restricted as a state sponsor of terrorism. Iran's relations with the US have stalled since August when it threatened to withdraw from the International Atomic Energy Agency (IAEA) [official website] if its "nuclear rights" are revoked [JURIST report]. The IAEA and the western powers are particularly concerned about Iranian activities that might lead to the production of nuclear weapons. Iran has repeatedly insisted that its enrichment activities are not weapons-related.





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Federal judge orders release of Yemeni Guantanamo detainee
Jaclyn Belczyk on December 17, 2009 10:04 AM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] on Wednesday granted Yemeni Guantanamo Bay [JURIST news archive] detainee Saeed Hatim's petition for habeas corpus, ordering his release. The US Department of Defense [official website] alleged that Hatim trained at the al Farouq paramilitary camp in Afghanistan. Judge Ricardo Urbina's ruling remains sealed [Miami Herald report], and lawyers have declined to elaborate on his reasoning. A spokesperson for the US Department of Justice [official website] said the government is currently considering its options.

Urbina's ruling comes just two days after Judge Thomas Hogan denied [transcript, PDF] Yemeni Guantanamo detainee Musa'ab Al-Madhwani's petition for habeas corpus, ruling that the government may continue to detain him [JURIST report]. Madhwani allegedly trained at the same camp as Hatim. Hogan excluded from evidence statements Madhwani made to interrogators, finding them to be the product of abusive techniques, but admitted statements made during military hearings because they were given years after the alleged abuse. Hogan found that while he does not believe that Madhwani poses a threat, the government met its burden of proving that he was a member of al Qaeda. Wednesday's ruling brings the total number of granted habeas petitions to 32, with just nine victories for the government.






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Housing Guantanamo detainees in Illinois prison will help close facility: Holder
Jaclyn Belczyk on December 17, 2009 9:00 AM ET

[JURIST] US Attorney General Eric Holder [official profile] said Wednesday that the decision to purchase [JURIST report] the Thomson Correctional Center (TCC) [DOC backgrounder] in northwestern Illinois to house inmates from Guantanamo Bay [JURIST news archive] could help close the facility over the next several months. Holder told a press conference that the purchase of the TCC removes a significant obstacle for closing the facility. Despite initially expressing hope that Guantanamo will close within the next few months, he later told Reuters that it may not close until the summer [Reuters report] or early next fall. Holder did emphasize that while the January 22 deadline will be missed, the facility will be closed.

Last month, the White House announced the resignation [JURIST report] of White House Counsel Gregory Craig, after months of criticism of his management of Guantanamo Bay policy initiatives. Also in November, the Center for American Progress (CAP) [advocacy website] reported that the likely failure to meet the self-imposed deadline for the closure of the Guantanamo Bay detention facility is due to several missteps by the Obama administration. In October, Holder announced that the Obama administration may miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials. US President Barack Obama originally issued the executive order to close Guantanamo within a year [JURIST report] last January 22, two days after taking office.






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US government sues Intel for antitrust violations
Jaclyn Belczyk on December 16, 2009 4:16 PM ET

[JURIST] The US Federal Trade Commission (FTC) [official website] on Wednesday sued [complaint, PDF; press release] computer microchip manufacturer Intel [corporate website] for antitrust violations. The complaint alleges that Intel used its dominant market position to stifle competition. According to the FTC, Intel engaged in threats and other unlawful tactics to coerce computer manufacturers not to purchase chips manufactured by its competitors. Director of the FTC's Bureau of Competition Richard Feinstein said that:


Intel has engaged in a deliberate campaign to hamstring competitive threats to its monopoly. It's been running roughshod over the principles of fair play and the laws protecting competition on the merits. The Commission's action today seeks to remedy the damage that Intel has done to competition, innovation, and, ultimately, the American consumer.

Intel rejected [press release] the government's claims, responding that it "has competed fairly and lawfully." The FTC is not seeking monetary damages from Intel, but rather an order to prevent the company from engaging in similar activity in the future.

The suit follows a similar suit [JURIST report] filed last month by the New York Attorney General [official website], alleging that the microprocessor manufacturer engaged in illegal conduct to further its dominance in the marketplace. Attorney General Andrew Cuomo claims that many of these agreements were aimed at specifically disadvantaging Advanced Micro Devices (AMD) [corporate website], one of the company's strongest competitors. Also last month, Intel agreed to settle [JURIST report] all outstanding legal issues with AMD by paying paying its competitor $1.25 billion.





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Pakistan Supreme Court strikes down presidential amnesty order
Jaclyn Belczyk on December 16, 2009 3:03 PM ET

[JURIST] The Supreme Court of Pakistan [official website] on Wednesday struck down [order, PDF] the National Reconciliation Ordinance (NRO) [text], which granted President Asif Ali Zardari [official website] and 8,000 other government officials immunity from corruption charges. A special 17-member panel of court ruled unanimously that the NRO is unconstitutional [Dawn report], paving the way for corruption charges to be brought against Zardari. Zardari is immune from prosecution while in office, but challenges to his eligibility [NYT report] as a presidential candidate are expected. Many other government officials, including the interior minister and the defense could face immediate prosecution.

The court began hearing [JURIST report] the legal challenge earlier this month. The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007 as part of a power-sharing accord allowing former Pakistani prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges [JURIST report] she had faced. The ordinance also applies to similar charges against politicians who were charged, but not convicted, of corruption between 1988 and 1999.






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Switzerland to accept Uzbek Guantanamo detainee
Jaclyn Belczyk on December 16, 2009 2:19 PM ET

[JURIST] The Swiss government announced Wednesday that it has agreed to accept [press release] one Uzbek Guantanamo Bay [JURIST news archive] detainee for resettlement "on humanitarian grounds." The unidentified detainee has been held at Guantanamo since 2005 but has never faced charges. The detainee has been cleared for release since 2005, but could not be returned to Uzbekistan for fear of persecution. According to the statement from the Swiss Justice Ministry [official website]:


The USA's accusation that the man has links with terrorist groups has never been proven. As long ago as 2005, the imprisoned Uzbeki was classified by the USA as "cleared for release". The US authorities have assured Switzerland that the man has been neither prosecuted nor convicted, and that he constitutes no danger to public safety. In addition, Switzerland has not had any feedback from any other foreign security authority that would render the transfer unjustifiable.

Pending approval by the US Congress, the detainee will be transferred and resettled in Geneva.

Several detainees have been transferred to Europe, and various European countries have expressed a willingness to take detainees as the Obama administration works to close the facility. Last week, Bulgaria agreed [JURIST report] to consider accepting one detainee. Earlier this month Albanian Prime Minister Sali Berisha [official website] told reporters that closing Guantanamo is "human rights issue" when expressing his willingness [JURIST report] to accept more detainees. In November, four Guantanamo detainees were transferred to three European countries, as the detainee population at the detention facility continues to be reduced. Two Tunisian natives were transferred to Italy [press release] where they will stand trial. The other detainees include an unidentified Palestinian man transferred to Hungary [press release] and an Algerian who was transferred to France [press release]. In September, Belgium accepted a detainee for resettlement after sending a delegation to Guantanamo to interview [JURIST reports] the candidate.





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UK Supreme Court finds Jewish school admission policy discriminatory
Jaclyn Belczyk on December 16, 2009 1:17 PM ET

[JURIST] The British Supreme Court [official website] ruled [judgment, PDF; press summary, PDF] Wednesday that a Jewish school discriminated against a boy by denying him admission because he was not "ethnically Jewish." The London secondary school, JFS [school website], denied admission to the boy, known as M, because his mother is Jewish by conversion, not by birth. The case turned on whether the school's policy was based on religion, which would be permissible, or based on race or ethnicity, which would be considered discriminatory. The five justices in the majority found the policy to be direct discrimination:


one thing is clear about the matrilineal test; it is a test of ethnic origin. By definition, discrimination that is based upon that test is discrimination on racial grounds under the Act.

Two justices found indirect discrimination, and two justices dissented. The Equality and Human Rights Commission [advocacy website], which supported M, welcomed the ruling [press release] as "an important verdict."

Wednesday's ruling is among the most controversial since the UK Supreme Court opened [JURIST report] in October. The new Supreme Court, created by the Constitutional Reform Act 2005 [text], replaced the judicial panel of the House of Lords [official website] as Britain's highest tribunal, with 12 Law Lords [official backgrounder] from the House of Lords serving as the first Supreme Court justices. The Supreme Court was created to emphasize the split between the judicial and legislative branches of government.





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Cambodia war crimes court issues first genocide charges
Patrice Collins on December 16, 2009 12:29 PM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Wednesday issued its first genocide charges against two former Khmer Rouge [BBC backgrounder; JURIST news archive] leaders. Former deputy leader and chief ideologist Nuon Chea and foreign minister Ieng Sary [Trial Watch profiles] were charged with genocide in connection with crimes allegedly committed against Vietnamese people and ethnic Cham Muslims. The charges, issued by co-investigating judges in Case 002 [case materials], have been brought by victims of the regime who participate as civil parties [ECCC backgrounder] in the official criminal proceedings. Both defendants have already been charged with breaches of the Geneva Convention [ICRC backgrounder] and crimes against humanity.

Earlier this month, the ECCC rejected [JURIST report] a request by Ieng Sary's lawyers to examine two international judges for bias. Last month, the court heard final arguments [JURIST report] in its first trial, that of Kaing Guek Eav [TrialWatch profile; JURIST news archive]. Kaing was the first of eight [JURIST report] ex-Khmer Rouge officials expected to be tried before the ECCC. A verdict is expected in March.






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Federal judge dismisses fraud charges against former Broadcom executives
Steve Czajkowski on December 16, 2009 12:16 PM ET

[JURIST] A federal judge on Tuesday dismissed [transcript, PDF] charges of fraud and conspiracy against two former executives of microchip maker Broadcom Corp. [corporate website] citing prosecutorial misconduct. Judge Cormac Carney of the US District Court for the Central District of California [official website] dismissed [LAT report] charges against Broadcom's former CEO and co-founder Henry Nicholas and former CFO William Ruehle, saying that US prosecutors improperly influenced three key witnesses on whom both Nicholas and Ruehle would have relied to prove their innocence. Carney cited evidence that the lead prosecutor on the case, Assistant US Attorney Andrew Stolper, had provided information to newspapers about former Broadcom Chairman Henry Samueli in order to get him to plead guilty to similar charges. The judge also said that Stolper had sought to influence the testimony of Broadcom's former general counsel David Dull and former vice president of human resources Nancy Tullos. The judge also dismissed a civil complaint [JURIST report] by the Securities and Exchange Commission (SEC) [official website] against Nicholas, Ruehle, Samueli, and Dull. The decision to dismiss was surprising since Nicholas's dismissal was without a motion and it took place during Ruehle's trial, which was all accompanied by the denial of the SEC complaint.

Nicholas and Rhuele had been indicted [text, PDF; JURIST report] in June 2008 for "conspiracy to disguise, conceal, understate, and mischaracterize compensation expenses Broadcom was required to recognize in connection with its stock options." Nicholas was also indicted separately on drug charges [indictment, PDF], and a hearing is set for February to decide whether those charges should be dismissed as well because of misconduct. The dismissal follows a similar decision in August by the US Court of Appeals for the Ninth Circuit [official website] to overturn the conviction [JURIST report] of former Brocade Communications Systems [corporate website] CEO Gregory Reyes for backdating stock options [JURIST news archive]. The appeals court overturned Reyes's 2007 conviction and sentence [JURIST reports] finding that the prosecution had made a false assertion of material fact to the jury in the closing argument.






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Switzerland minaret ban challenged in Europe rights court
Jaclyn Belczyk on December 16, 2009 12:13 PM ET

[JURIST] The lawyer for a Swiss Muslim said Wednesday that his client has filed a complaint at the European Court of Human Rights (ECHR) [official website] challenging Switzerland's recent vote to ban the construction of minarets [JURIST report]. Hafid Ouardiri, a former spokesman at the Geneva Mosque, alleges [Reuters report] that the ban violates his rights to freedom of religion and freedom from discrimination under Articles 9, 13, and 14 of the European Convention on Human Rights [text, PDF]. The ECHR could take up to 18 months to decide whether to hear Ouardiri's complaint, and then it could be several more years before the court rules on the merits.

Last week, a group of Swiss intellectuals called for [JURIST report] the ban's reversal. Swiss Supreme Court President Lawrence Meyer also said [NZZ report, in German] last week that two suits have been filed in federal court challenging the ban's legality. UN High Commissioner for Human Rights Navi Pillay [official website] has condemned the ban [JURIST report] as a form of religious discrimination. Last year, the Swiss government announced [JURIST report] that Swiss nationalist parties had gathered enough signatures on their initiative against the construction of minarets [initiative website, in French] to force a national referendum on whether the country's constitution should be amended to ban the structures. The initiative was originally sponsored by the anti-immigrant Swiss People's Party (SVP) [party website].






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EU settles Microsoft antitrust dispute over web browsers
Jaclyn Belczyk on December 16, 2009 11:03 AM ET

[JURIST] The European Commission (EC) on Wednesday agreed to drop antitrust charges [press release] against Microsoft [corporate website; JURIST news archive] after the company agreed to offer consumers a choice of web browsers [JURIST report]. The EC had accused Microsoft of violating fair competition rules by bundling the Internet Explorer browser with its Windows operating system. Under the agreement, European Windows users will have the option to switch to an alternative browser beginning next year. European Commissioner for Competition Policy Neelie Kroes said [remarks] that, "[m]ore than 100 million European computer users stand to benefit from the Commission's decision today. Microsoft Senior Vice President and General Counsel Brad Smith said [press release] the company is "pleased" with the decision. Rival browser makers Google and Mozilla, which had joined the case originally brought [JURIST reports] by Opera, also welcomed the decision [NYT report].

Microsoft has also faced antitrust charges in other parts of the world. In September, the Seoul Central District Court found Microsoft in violation [JURIST report] of South Korea's antitrust laws for bundling software programs with its Windows operating system. The court found the company's bundling practice to be in violation of fair competition rules and disruptive to the market. This was the second suit within a few months in which Microsoft was found liable for breach of South Korean antitrust laws. In June, the same court ruled that Microsoft violated antitrust laws [JURIST report] by packaging software with its Windows operating system, also dismissing requests for damages from two Korean software firms on the grounds that the damages were not sufficiently linked to Microsoft's conduct.






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Democratic lawmakers introduce immigration reform bill
Steve Czajkowski on December 16, 2009 10:43 AM ET

[JURIST] An assembly of Democratic lawmakers on Tuesday submitted [press release] an immigration reform bill in the US House of Representatives [official website] that would give undocumented immigrants an easier path to seek legal status in the country. The proposed legislation, which is titled the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP) [bill summary, PDF], was introduced by representatives Luis Gutierrez (D-IL) and Solomon Ortiz (D-TX) [official websites], and would require an undocumented immigrant to register with the federal government, pay a $500 fine, and learn English in order to receive a six-year visa that could eventually turn into a green card. The applicant would also have to pass a criminal background check and various other provisions. The bill would also add stiffer penalties for employers that hire undocumented workers, and would provide additional rules for foreign investors and those that seek to hire foreign workers.

The proposed legislation follows the Obama administration's announcement [JURIST report] that it would seek immigration reform early next year. Last month, Department of Homeland Security (DHS) [official website] Secretary Janet Napolitano [official profile] said that the proposed reform legislation would be a "three-legged stool" that combines effective and fair enforcement, an improved process for legal immigration, and a "firm but fair way" to deal with illegal immigrants who are already in the US. The proposed bill is also the first attempt at immigration reform since the failed [JURIST report] Comprehensive Immigration Reform Bill [S 1639 materials] in 2007. At that time, detractors called the bill too lenient on illegal immigrants and said that by granting legal status to illegal aliens, the US was granting "amnesty."






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US hedge fund founder indicted for insider trading
Jaclyn Belczyk on December 16, 2009 10:09 AM ET

[JURIST] Galleon Group [partnership website] hedge fund founder Raj Rajaratnam [Financial Times profile] and former hedge fund consultant Danielle Chiesi were indicted [text, PDF; press release, PDF] Tuesday by a federal grand jury in Manhattan on insider trading charges. The 17-count indictment includes charges of conspiracy and securities fraud for their alleged role in the largest hedge fund insider trading case in US history. Rajaratnam has repeatedly denied any wrongdoing, promising to fight the charges. A lawyer for Chiesi, former hedge fund consultant to New Castle Partners LLC, said that she will also plead not guilty [WSJ report]. If convicted, Chiesi could face up to 155 in prison. Rajaratnam faces a sentence of up to 145 years. The indictment also seeks $20.8 million in forfeiture. The two are expected to be arraigned next week.

Rajaratnam and Chiesi were arrested in October and charged [complaint, PDF; press release] along with four other individuals and two business entities with insider trading. The complaint alleged that the individuals, including a managing director at Intel Corp., a director at McKinsey & Co., and a senior executive at IBM [corporate websites], provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. The government of Sri Lanka has accused Rajaratnam of helping fund [Financial Times report] the Tigers of Tamil Eelam (LTTE) [JURIST news archive], a group designated as a terrorist organizations by several countries including the US. Although records show that Rajaratnam contributed money to the Tamil Rehabilitation Organization, a charity that the US claimed was a front for the LTTE, Rajaratnam denies funding the LTTE and has not been charged with funding the LTTE.






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Ohio Supreme Court rules warrantless cell phone searches violate Fourth Amendment
Jaclyn Belczyk on December 16, 2009 9:02 AM ET

[JURIST] The Ohio Supreme Court [official website] ruled [opinion, PDF; press release] Tuesday that police must obtain a warrant before searching data stored in a cell phone, in the first ruling of its kind by a state high court. The court ruled 4-3 that a warrantless search of the contents of a suspect's cell phone violates the Fourth Amendment [text] prohibition against unreasonable search and seizure unless the search is necessary to protect the officers' safety or there are other exigent circumstances:


We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith's cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone.

Greene County prosecutor Stephen Haller expressed disappointment [AP report] with the ruling and may appeal to the US Supreme Court.

Courts have struggled with how to apply Fourth Amendment protections to modern technology. Earlier this week, the US Supreme Court granted certiorari [JURIST report] in City of Ontario v. Quon [docket; cert. petition, PDF], in which the Court will consider whether a special weapons and tactics (SWAT) team member has a reasonable expectation of privacy in text messages sent to and from his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the SWAT team member does have a reasonable expectation of privacy and that a search of his text messages violated his Fourth Amendment rights.





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Obama administration to house Guantanamo detainees at Illinois prison
Jaclyn Belczyk on December 15, 2009 4:42 PM ET

[JURIST] The Obama administration said Tuesday that it plans to purchase [presidential memoranda] the Thomson Correctional Center (TCC) [DOC backgrounder] in northwestern Illinois to house inmates from Guantanamo Bay [JURIST news archive]. In a letter [text, PDF] to Illinois Governor Pat Quinn [official website], the secretary of state, secretary of defense, attorney general, secretary of homeland security, and director of national intelligence said that the facility will house both Guantanamo detainees and other federal inmates. According to the letter, no detainee will be released onto US soil:


The President has no intention of releasing any detainees in the United States. Current law effectively bars the release of the Guantanamo detainees on U.S. soil, and the Federal Government has broad authority under current law to detain individuals during removal proceedings and pending the execution of final removal orders.

Quinn and Illinois Senator Dick Durbin (D-IL) [official website] welcomed [press release] Tuesday's announcement, saying it "will have a tremendously positive impact on the local economy." Republicans are already opposing the move, with Senate Republican Conference chair Lamar Alexander (R-TN) [official website] saying [press release], "I have yet to hear one good reason why moving these terrorists from off our shores right into the heart of our country makes us safer."

Last week, the Washington Post reported that the Obama administration was seeking Illinois congressional support [JURIST report] for a plan to purchase the TCC to house terrorism suspects currently being held at Guantanamo. Both Durbin and Quinn have consistently favored [JURIST report] moving Guantanamo detainees to the northwestern Illinois prison facility, as it is estimated that the facility could bring 2,340-3,250 new jobs to the community and provide an estimated $790 million to $1.09 billion economic impact over four years. Not all local leaders support the possible transfer of accused terrorists to Illinois, however. In November, US Representative Mark Kirk (R-IL) [official website] wrote a letter [text] to President Barack Obama, urging him not to transfer detainees to the TCC because of fears it would lead to terrorist activity in the Chicago area. Even though the prison has been chosen as a domestic facility for Guantanamo transferees, in order to hold detainees in US, Congress would have to change a law specifically prohibiting detainee transfers into the US except for trials [JURIST report].





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DC Council gives final approval to same-sex marriage bill
Jaclyn Belczyk on December 15, 2009 3:49 PM ET

[JURIST] The Council of the District of Columbia [official website] on Tuesday gave final approval to a bill that would allow same-sex marriages [JURIST news archive] to be performed in Washington, DC. The Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [text, PDF] passed with a vote of 11-2, despite opposition from the Catholic Archdiocese of Washington [organization website], which has pledged to end social services [JURIST report] if the bill becomes law. The bill will now go before DC Mayor Adrian Fenty [official profile], who has promised to sign it [Washington Post report], after which the US Congress would have 30 legislative days to veto it under the Home Rule Act [text, PDF]. If Congress fails to act, the bill will then become law at the expiration of that time. Council members Marion Barry and Yvette Alexander [official profiles] cast the dissenting votes.

Last month, the District of Columbia Board of Election and Ethics [official website] ruled [JURIST report] that the Jury and Marriage Act (JAMA) [text, PDF], which allows DC to recognize same-sex marriages performed legally in other jurisdictions, could not be challenged by a ballot initiative because overturning the law would violate the DC Human Rights Act [text]. JAMA took effect [JURIST report] in July after congressional inaction. If the marriage bill becomes law, DC will become the sixth US jurisdiction to recognize marriage between same-sex couples. Same-sex marriage is currently legal in four states in the US - Massachusetts, Connecticut, Iowa, and Vermont - and will be legal in New Hampshire [JURIST reports] starting January 1.






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Canada judge quashes security certificate against alleged terror suspect
Megan McKee on December 15, 2009 3:01 PM ET

[JURIST] A judge for the Canadian Federal Court [official website] on Monday struck down a security certificate [IRPA text; PSC Backgrounder] that deemed Syrian-born Toronto resident Hassan Almrei a threat to national security. The security certificate law, which is used to arrest and deport non-Canadians considered threats to national security, has become controversial in recent years because it relies on evidence heard in secret, and detainees are not informed in full detail of the allegations against them. Almrei was arrested more than eight years ago by the Canadian Security Intelligence Service (CSIS) [official website] on terror suspicions. Justice Richard Mosley concluded [CP report] that the evidence presented by CSIS did not hold up under scrutiny, and admonished both CSIS and the federal ministers of public safety and immigration for breaching their duties of good faith by not thoroughly reviewing their information before issuing the certificate. The court issued a private opinion regarding the information and evidence heard in private sessions, which will only be released to the ministers and special advocates.

The ruling is the latest assault on the certificate program. Earlier this week, it was reported that the Canadian government has begun reviewing [JURIST report] its security certificate system. Public Safety Minister Peter Van Loan [official profile] said the government is considering making significant changes to the law or abolishing it completely. In September, the government withdrew [Globe and Mail report] a certificate against Moroccan-born Montrealer, Adil Charkaoui, in lieu of subjecting its evidence against him to review in court.






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Africa rights court refuses to take Habre case in first ruling
Jaclyn Belczyk on December 15, 2009 2:54 PM ET

[JURIST] The African Court on Human and People's Rights (AfCHPR) [official website] issued its first decision [judgment, PDF] Tuesday, finding that it lacks jurisdiction to hear a case against Senegal on whether charges against former Chadian president Hissene Habre [BBC profile; JURIST news archive] should be dropped. Chadian national Michelot Yogogombaye filed a petition with the court last year seeking to suspend the planned Senegalese trial of Habre. The court unanimously dismissed the case for lack of jurisdiction:


Consequently, the Court concludes that Senegal has not accepted the jurisdiction of the Court to hear cases instituted directly against the country by individuals or non-governmental organizations. In the circumstances, the Court holds that ... it does not have jurisdiction to hear the application.

Habre, who has been accused of involvement in the murder or torture of more than 40,000 political opponents during his rule from 1982 to 1990, fled to Senegal after being overthrown in 1990. Belgium has sought to try him under the principle of universal jurisdiction, but Senegal has long refused extradition [JURIST reports].

Last year, the AfCHPR was criticized [JURIST report] for its failure to effectively institute a court to adjudicate human rights issues on the continent. Minority Rights Group International (MRGI) [advocacy website] said the AfCHPR had not yet begun to hear cases despite its establishment more than 10 years ago, attributing the delay to disputes between the court and the commission and a lack of strong support from African Union (AU) [official website] countries. Eleven judges were sworn-in in 2006, despite criticism for lack of transparency [JURIST reports] in the nomination process. The AfCHPR was officially created by a 1998 AU protocol [text]





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UK government appeals release of details on ex-Guantanamo detainee's treatment
Jaclyn Belczyk on December 15, 2009 2:00 PM ET

[JURIST] British government lawyers argued Monday that two UK High Court judges acted irresponsibly when they ruled [judgment text] last month that the details of the detention of Binyam Mohamed [JURIST news archive] in Pakistan in 2002 must be released [JURIST report]. Lawyers representing Foreign Secretary David Miliband [official profile] were appealing the latest in a series of back and forth rulings on whether redacted materials regarding Mohamed's detention should be disclosed. An October interim ruling [JURIST report] by Lord Justice Thomas and Justice Lloyd Jones resulted in a redacted release, which the High Court indicated it would revisit after receiving submissions from both the Foreign & Commonwealth Office (FCO) [official website] and Mohamed. In handing down its most recent decision ordering disclosure, Thomas and Jones said that in making public details of a detainee's treatment, "we were not in the judgment 'giving away the intelligence secrets of a foreign country' or making public 'American secrets.'" Both justices were critical of Milliband's efforts to keep the information classified [BBC report], noting that the US had already released similar information on the treatment of Abu Zubayah. The appeal is being heard [Guardian report] by Lord Judge, Lord Neuberger, and Sir Anthony May.

Also last month, a separate judge on the High Court ruled that, in Mohamed's separate suit for damages, information relating to his treatment at Guantanamo Bay may be withheld [JURIST report] under a "closed material procedure." Mohamed was returned to the UK in February, after charges against him were dismissed in October 2008 [JURIST reports]. Mohamed had been held at Guantanamo Bay for four years, on suspicion of conspiracy to commit terrorism [JURIST report].






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Federal judge denies Yemeni Guantanamo detainee's habeas petition
Jaclyn Belczyk on December 15, 2009 1:09 PM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] on Monday denied [transcript, PDF] Yemeni Guantanamo Bay [JURIST news archive] detainee Musa'ab Al-Madhwani's petition for habeas corpus, ruling that the government may continue to detain him. Judge Thomas Hogan excluded from evidence statements made to interrogators, finding them to be the product of abusive techniques, but admitted statements made during military hearings because they were given years after the alleged abuse. Hogan found that while he does not believe that Madhwani poses a threat, the government met its burden [Washington Post report] of proving that he was a member of al Qaeda. Madhwani has been detained at Guantanamo since October 2002.

Monday's ruling marks the ninth victory for the government in a habeas proceeding, while the court had ordered the release of 31 detainees. In September, a judge denied [JURIST report] the habeas petition of Algerian Guantanamo Bay detainee Sufiyan Barhoumi, bringing the total number of government victories to eight.

1/6/10 - A written ruling is now available here [opinion, PDF].






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Colorado high court rules tax office raid violated immigrants' rights
Jaclyn Belczyk on December 15, 2009 12:02 PM ET

[JURIST] The Colorado Supreme Court [official website] ruled [opinion, PDF] Monday that a raid of tax-preparer's office in order to build identify theft cases against suspected illegal immigrants was a violation of the immigrants' Fourth Amendment [text] rights. In 2008, investigators raided [Denver Post report] Amalia's Tax and Translation, which caters to Spanish speakers, and searched through 5,000 files for instances of immigrants using fake Social Security numbers. The raid resulted in 100 arrests, with charges filed against 70 immigrants. Although about 60 cases were dismissed after a judge excluded the evidence obtained in the raid, about 30 immigrants had already pleaded guilty [LAT report] to identity theft and been turned over for deportation. The court ruled 4-3 to affirm the lower court's decision, finding:


The warrant in this case permitted an unbridled search conducted, as the trial court described, "with the hope of uncovering evidence of criminal activity, which practice seems more in line with the writs of assistance in colonial America." We hold that the warrant here contravenes basic freedoms guaranteed by the Fourth Amendment. We also hold that the good faith exception does not apply because this warrant was so lacking in indicia of probable cause that no reasonably well-trained officer could have relied upon it. Hence, we affirm the trial court's suppression order, and we return this case to the trial court for proceedings consistent with this opinion.

Weld County District Attorney Ken Buck does not plan to appeal the decision.

Last month, the US Department of Homeland Security (DHS) [official website] announced that the Obama administration will push for immigration reform [JURIST report] legislation early next year. In October, DHS rescinded a rule that would have required employers to fire workers whose information did not match Social Security Administration (SSA) [official website] records. Despite the repeal, the Obama administration has expressed support [press release] for the E-Verify system [official website], a largely voluntary system that also relies on matching employee information with the SSA.





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UK court issues, then revokes, arrest warrant for Israel ex-foreign minister
Carrie Schimizzi on December 15, 2009 11:03 AM ET

[JURIST] A British magistrate court issued an arrest warrant Monday for Israel's opposition chairwoman on war crimes charges relating to Israel's Gaza offensive [JURIST news archive] earlier this year, but withdrew the warrant after discovering she wasn't in the country. Former Israeli foreign minister Tzipi Livni [official website, in Hebrew] was scheduled to speak at the Jewish National Fund Vision 2010 conference in London over the weekend, but quietly canceled her travel plans, apparently fearing possible arrest. [Haaretz report]. Israeli officials, including Prime Minister Benjamin Netanyahu [official website], are outraged [AP report] at the action and fear the move will hamper Britain's role in Middle East peace negotiations. Israel's Ministry of Foreign Affairs (MFA) [official website] issued a statement [press release] condemning the warrant. According to the statement, the MFA is concerned the action "seriously compromises Britain's ability to play the active role in the Middle East peace process that it desires." It also expressed Israel's desire for future compromises with the country saying Israel and Britain are "both engaged in a common struggle against the forces of international terror."

In October, Vice Prime Minister Moshe Yaalon [official profile] decided to call off [JURIST report] a scheduled trip to attend a fundraising event for the Jewish National Fund after legal advisers from the Israeli MFA said that he may be arrested over his involvement in a 2002 airstrike that killed Hamas leader Salah Shehadeh and 14 civilians. Just one week earlier, Palestinian officials attempted [Jerusalem Post report] to have Israeli Defense Minister Ehud Barak [official profile, in Hebrew] arrested on charges of war crimes while he was in Britain for a meeting with UK government leaders, but the British court rejected the petition citing Barak's diplomatic immunity. Israeli officials are concerned about the possibility of being charged with war crimes in Britain and other foreign countries based on the theory of universal jurisdiction [AI backgrounder], which allows a country to prosecute serious crimes against humanity no matter where the activity takes place.






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G-20 protest groups file amended suit against Pittsburgh police for violating rights
Jaclyn Belczyk on December 15, 2009 10:57 AM ET

[JURIST] The American Civil Liberties Union of Pennsylvania (ACLU-PA) and the Center for Constitutional Rights (CCR) [advocacy websites] announced [press release] Monday that they are extending and continuing a lawsuit against the City of Pittsburgh for allegedly violating the rights of two protest groups during September's Group of 20 (G-20) Summit [official website; JURIST news archive]. According to the amended complaint [text, PDF] filed Friday in the US District Court for the Western District of Pennsylvania [official website], Pittsburgh police officers repeatedly violated the First, Fourth, and Fourteenth Amendment [text] rights of Seeds of Peace and Three Rivers Climate Convergence (3RCC) [advocacy websites] by "deliberately adopt[ing] a strategy to harass, intimidate, discourage and ultimately prevent the plaintiffs ... from exercising their First Amendment rights to free speech and assembly." The lawsuit names as defendants Pittsburgh Mayor Luke Ravenstahl, Director of Public Safety Michael Huss, Chief of Pittsburgh Bureau of Police Nathan Harper and Assistant Chief William Bochter, Assistant Director of Pittsburgh City Parks Michael Radley, and police officers to be named later. The suit seeks a declaration that defendants violated plantiffs' rights, as well as compensatory and punitive damages.

The ACLU-PA and CCR originally filed the lawsuit [JURIST report] in September. Both groups claimed that police searched and seized members of the groups and their property and that police retaliated against members for exercising their right to free speech. Seeds of Peace also claimed that police detained their bus without cause, illegally searched and impounded the bus, and conducted a warrantless raid on the property on which the bus was being stored. Pittsburgh has also been criticized for its handling of other protesters. The National Lawyers Guild (NLG) [advocacy website] questioned [JURIST report] the methods used by police during protests in the Lawrenceville and Oakland [JURIST reports] sections of Pittsburgh and also noted that individual officers lacked visible identification, frustrating the work of NLG and ACLU legal observers. Ravenstahl has, however, praised police for showing restraint [Pittsburgh Post-Gazette report] and credited them with providing for a peaceful summit.






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Romania court declares incumbent winner of disputed presidential election
Jaclyn Belczyk on December 15, 2009 10:02 AM ET

[JURIST] The Constitutional Court of Romania [official website, in Romanian] on Monday declared [press release, PDF; in Romanian] incumbent Traian Basescu [official website, in Romanian] winner of the country's disputed presidential election. The court unanimously rejected a complaint by Basescu's opponent, Social Democrat Mircea Geoana [campaign website, in Romanian], to declare the results of last week's runoff election invalid because of allegations of voter fraud and bribery. After the first round of elections in November produced no clear winner, Basescu and Geoana faced a runoff election. Official results showed that Basescu had won by a mere 70,000 votes, garnering 50.3 percent of the total votes, and the court ordered election officials to recount [JURIST report] 138,000 voided ballots on Friday. After the recount, Basescu was still determined to be the winner, and the court refused to annul the results. While Geoana said Monday that he accepted [AFP report] the court's decision, he is seeking a parliamentary inquiry into how the election was conducted.

Basescu's administration will now be tasked with resolving Romania's financial crisis and repairing its image as the most corrupt member of the European Union (EU). In February, the European Commission (EC) [official website] reported [text, PDF] that Romania has not made sufficient progress in its anti-corruption campaign since its accession [JURIST reports] to the EU two years ago. In June 2007, the EC issued a progress report [JURIST report], saying that Romania needed to do more to achieve judicial reform, and combat corruption and organized crime. In July 2008, Romania was again criticized [EU report] for its failure to address the same issues.






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Obama administration human rights agenda outlined
Jaclyn Belczyk on December 15, 2009 9:03 AM ET

[JURIST] US Secretary of State Hillary Clinton [official profile] on Monday announced [remarks; video] the Obama administration's human rights agenda, emphasizing human rights, democracy, and development. Speaking at Georgetown University just days after US President Barack Obama received the Nobel Peace Prize, Clinton said that "a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves." Clinton also said that the US must be "pragmatic and agile" in its approach without compromising its principles and that the administration would "support change driven by citizens and their communities." Clinton said the US must "widen [its] focus" and concluded by saying:


In the end, this isn't just about what we do; it is about who we are. And we cannot be the people we are – people who believe in human rights – if we opt out of this fight. Believing in human rights means committing ourselves to action, and when we sign up for the promise of rights that apply everywhere, to everyone, that rights will be able to protect and enable human dignity, we also sign up for the hard work of making that promise a reality.

Clinton's speech came after the Obama administration has faced months of criticism for being too lenient on human rights violations.

In September, the US officially took its place [JURIST report] on the UN Human Rights Council [official website] for the first time. In an address [text] to the council, US Assistant Secretary for the Organization of International Affairs Esther Brimmer [official profile] discussed four themes the US sees as key to its role on the council: the universality of human rights, the importance of dialogue between countries, the application of fundamental principles of human rights, and the need for truth and honesty in confronting human rights violations. Brimmer acknowledged that the US had made mistakes regarding human rights in the past but noted the progress of the US in correcting those lapses. The US was among 18 countries elected [JURIST report] to the council in May. In April, the US State Department [official website] released [press release; JURIST report] its commitments and pledges to human rights in anticipation of May election. 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 to replace the much-criticized Committee on Human Rights, at which time the Bush administration declined to seek a Council seat or participate in its proceedings due to a perceived anti-Israeli sentiment by the UNHRC.





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Supreme Court dismisses final challenge to Chrysler sale
Jaclyn Belczyk on December 14, 2009 4:39 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday dismissed [order list, PDF] the final challenge to the sale of Chrysler Group assets to Italian automaker Fiat [corporate websites]. The Court granted, vacated, and remanded Indiana State Police Pension Trust v. Chrysler [docket], an appeal from a ruling by the US Court of Appeals for the Second Circuit. The appeal was opposed by both the Obama administration and the new Chrysler, and the Court dismissed the appeal as moot, since the sale was finalized in June.

The sale was finalized one day after the Supreme Court ruled [opinion, PDF; JURIST report] that the sale could proceed. The stay was requested [JURIST report] by consumer groups, three Indiana pension and construction funds, and others. The pension and construction funds alleged that the use of Trouble Asset Relief Program (TARP) [materials] funds to finance the bankruptcy was unconstitutional.






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Saddam lawyer seeking consent to prosecute former UK PM Blair for war crimes
Jaclyn Belczyk on December 14, 2009 4:03 PM ET

[JURIST] Saddam Hussein's former lawyer on Saturday asked the British attorney general for consent to prosecute former prime minister Tony Blair [official profile; JURIST news archive] for violations of the Geneva Conventions [materials]. Giovanni di Stefano, who represents former Iraqi deputy prime minister Tariq Aziz [JURIST news archive], sent a letter [text, DOC] asking for consent to prosecute Blair after Blair said in a BBC interview aired Sunday that he would have invaded Iraq [BBC report] even if he knew there were no weapons of mass destruction. According to the letter:


In summary the allegation against ANTONY CHARLES LYNTON BLAIR involves a violation of offences within the Geneva Conventions Act 1957 which without doubt and by his own admission can only but be deemed "not justified by military necessity and carried out unlawfully and wantonly."

The attorney general's office has not yet commented [AFP report] on the request.

Sir John Chilcot [Guardian profile] is chairing the Iraq Inquiry [official website; BBC backgrounder], which began [JURIST report] investigations in November to determine the legality of the Iraq War. Last month, a letter leaked to the Iraq Inquiry indicated that former UK attorney general Peter Goldsmith [BBC profile] warned [JURIST report] Blair that the planned invasion of Iraq could be illegal. Earlier in November, documents implicating improper and possibly illegal conduct in relation to the war were leaked [JURIST report] to the British press. In October, a UK High Court criticized [JURIST report] the Ministry of Defence for its failure to properly set up an independent inquiry into claims that war crimes had been committed by British soldiers following the so-called "Battle of Danny Boy" [BBC backgrounder] in southern Iraq.





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Sudan leaders reach agreement on southern independence referendum
Jaclyn Belczyk on December 14, 2009 2:38 PM ET

[JURIST] Sudanese leaders reached an agreement Sunday for a referendum on independence for the south. The agreement was reached between the ruling National Congress Party (NCP) [party website] of President Omar al-Bashir [BBC profile; JURIST news archive] and the Sudan People's Liberation Movement (SPLM) [FAS backgrounder] of Salva Kiir [BBC profile], which comprise the current coalition government created pursuant to the 2005 Comprehensive Peace Agreement (CPA) [UN press release] that ended two decades of civil war. Under the agreement, the south will gain independence [Sudan Tribune report] with a 60 percent voter turnout and a 51 percent yes vote. The NCP had originally sought a two-thirds voter turnout and a 75-90 percent yes vote. The parties also reached an agreement on referendum rules for the oil-rich Abyei region. The referendum is scheduled for 2011.

Under the CPA, Sudan is set to hold its first democratic multi-party elections in almost a quarter of a century, slated for April of next year. Last month, the NCP and the SPLM accused each other [JURIST report] of fraud, torture, intimidation, and sabotage as voters began registering. Last year, the Sudanese parliament approved the appointment of a nine-member independent electoral commission [JURIST report] to oversee the upcoming vote. In July 2008, the parliament passed a long-anticipated electoral law [JURIST report] dictating how the country's parliamentary seats will be allotted. The law reserves some seats for candidates chosen by popular vote, and some for proportional representation of political parties including seats reserved for women. Following the signing of the CPA, the country also approved a new constitution and installed a new government, and the country's state of emergency was lifted [JURIST reports], except in Darfur and a region on the eastern border.






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Some Philippines judges want high court to hear martial law challenge: report
Matt Glenn on December 14, 2009 1:25 PM ET

[JURIST] At least four justices on the Supreme Court of the Philippines [official website] believe the court should hear cases stemming from this month's imposition of martial law [Proclamation 1959 text, PDF] in the province of Maguindanao, despite petitions to declare those cases moot after martial law was lifted [JURIST report] on Saturday, ABS-CBN News [media website] reported [text] Monday. The unidentified sources, however, said the majority of judges would likely vote to reject the cases. The pending cases allege that the government engaged in warrantless searches and seizures and that detainees were held without charges for more than three days in violation of martial law under the Philippines Constitution [text]. Human rights lawyers from the Philippines, South Korea, Australia, and Japan asked the court [Manila Bulletin report] to hear those cases, warning that failure to hear them would set precedent allowing the president to temporary implement martial law and retract it in time to avoid penalties for abuses committed under it. Also on Monday, the Senate of the Philippines [official website] passed a resolution [text, PDF] condemning the decision of President Gloria Macapagal-Arroy [official website, BBC profile] to implement martial law as contrary to the constitution since it was not imposed in response to armed rebellion.

Last week, Amnesty International (AI) [advocacy website] urged [JURIST report] Philippine authorities to establish a timetable to end martial law. The National Union of People's Lawyers (NUPL) [advocacy website] and other groups petitioned the Supreme Court to reject the declaration of martial law. The proclamation was announced [JURIST report] earlier this month, and is a result of instability in the province following a politically motivated attack that left 57 dead last month. Government authorities earlier this month arrested several suspects [BBC report] in connection with the attack, including Maguindanao Governor Andal Ampatuan Sr., and subsequently discovered an "arsenal of weapons" buried nearby. Military officials believed that rebels loyal to the Ampatuan family intended to launch a rebellion. The family is suspected of ordering the November 23 attack [AFP report] against political rival Esmael Mangudadatu, who was traveling with family, aides, and journalists to file as a candidate in an upcoming gubernatorial election.






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Canada to review anti-terror security certificate system: report
Matt Glenn on December 14, 2009 12:07 PM ET

[JURIST] The Canadian government has begun reviewing its security certificate [IRPA text; PSC Backgrounder] system, which allows the government to deport residents who pose a threat to national security, the Canadian Press (CP) [media website] reported [text] Sunday. The government may consider making significant changes to the law or abolishing it completely, Public Safety Minister Peter Van Loan [official profile] told the CP. As it is currently constructed, the law allows the government to issue certificates to non-citizen residents it deems a threat to national security but does not require that the government reveal to the resident classified information used against him or her. A special advocate may protest the certificate before a judge in closed proceedings. Critics of the law claim that the system violates residents' fundamental rights by failing to reveal the full charges against them. Complicating matters is a 2002 Canadian Supreme Court ruling [judgment text] preventing the government from returning residents to countries in which they are likely to face torture. Between the time the certificate is issued and the case is resolved, the immigrant remains free from jail, but subject to strict regulations. At least one immigrant, according to the report, has faced restrictions on his movement for more than a decade since he became subject to a certificate but cannot be returned to his country country of origin due to the likelihood he will be tortured. The report does not mention a timetable for completion of the review.

Last year, the Federal Court of Canada [official website] dismissed [JURIST report] a lawsuit challenging the security certificate program, ruling that it was too early to determine whether 2007 amendments to the program would violate immigrants' rights. The Canadian House of Commons passed the provisions allowing the use of special advocates in February 2008, after introducing [JURIST reports] the bill in October 2007. The changes came in response to a decision [text] by the Supreme Court of Canada that found the government's prior use of security certificates to indefinitely detain and deport foreigners with suspected ties to terrorism violated the Canadian Charter of Rights and Freedoms [text; CDCH materials]. Three Arab Muslim men, Adil Charkaoui, Hassan Almrei, and Mohamed Harkat, had argued [JURIST report] before the high court that their indefinite detentions were unconstitutional. The court said in its ruling that indefinite detentions under security certificates were permissible as long as evidence that detainees themselves could not see could be challenged.






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China prosecutors formally charge rights activist with inciting subversion
Amelia Mathias on December 14, 2009 11:03 AM ET

[JURIST] Chinese prosecutors formerly charged prominent rights activist Liu Xiaobo on Saturday with inciting subversion. Liu, who spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule, and co-authored Charter 08 [text], a petition calling for political reforms in the country. Liu was formally arrested [JURIST report] in June, but has been in detention since last December, shortly before the petition's release. Other organizers of the Charter 08 movement have asked that Liu's sentence be shared with them [Reuters report]. His trial, which could begin in 10 days, will likely move slowly due to the ordinary delays of the Chinese judicial process. If convicted, he could face up to 15 years in prison.

In June, rights groups marked the 20th anniversary of the 1989 uprising in Beijing's Tiananmen Square, calling for the government to investigate the incident [JURIST report] and implement changes called for by Charter 08. More recently, China was criticized for an increase in political arrests [press release; JURIST report] leading up to the 2008 Beijing Olympics, including the trial of dissident Hu Jia and the conviction [JURIST reports] of Yang Chunlin [AI profile] for the same "subversion" crime with which Liu is charged.






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Supreme Court declines to hear torture suit by former UK Guantanamo detainees
Jaclyn Belczyk on December 14, 2009 10:46 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday declined to hear [order list, PDF] 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 denied certiorari in Rasul v. Myers [docket; cert. petition, PDF], leaving in tact a ruling [opinion, PDF; JURIST report] by the US Court of Appeals for the DC Circuit [official website]. The appeals court had affirmed in part a 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 appeals court ruling came after the Supreme Court 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.

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 then-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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Supreme Court to hear Fourth Amendment, immigration cases
Jaclyn Belczyk on December 14, 2009 10:12 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in three cases. In City of Ontario v. Quon [docket; cert. petition, PDF], the Court will consider whether a special weapons and tactics (SWAT) team member has a reasonable expectation of privacy in text messages sent to and from his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the SWAT team member does have a reasonable expectation of privacy and that a search of his text messages violated his Fourth Amendment [text] rights.

In Robertson v. United States, ex rel. Watson [docket; cert. petition, PDF], the Court will consider whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

In Carachuri-Rosendo v. Holder [docket; cert. petition, PDF], the Court will consider whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been "convicted" of an "aggravated felony" on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession. Under the Immigration and Nationality Act [text], a lawful permanent resident who has been "convicted" of an "aggravated felony" is ineligible to seek cancellation of removal. The US Court of Appeals for the Fifth Circuit ruled [opinion, PDF] that a state law conviction for simple drug possession could be an "aggravated felony" if the defendant could have been charged with a felony, affirming the Board of Immigration Appeals holding that Jose Angel Carachuri-Rosendo is ineligible for cancellation of removal.






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Libya making slow progress on human rights: HRW
Amelia Mathias on December 14, 2009 10:01 AM ET

[JURIST] Libya is making strides towards greater transparency and acknowledgment of human rights, but still has a long way to go, according to a report [text; press release] published Saturday by Human Rights Watch (HRW) [advocacy website]. The report, entitled "Libya: Truth and Justice Can't Wait," is a follow up to a 2006 report [text] "Words to Deeds." While acknowledging Libya's strides in opening itself back up to the rest of the world, HRW also notes that there is no independent journalism nor independent non-governmental organizations:


Overall, unjustified limits on free expression and association remain the norm, including penal code provisions that criminalize "insulting public officials" or "opposing the ideology of the Revolution." Many relatives of prisoners killed in a 1996 incident at Abu Salim prison are still waiting to learn how their relatives died and to see those responsible punished. The jurisdiction of courts, the duties of government agencies, respect for legal rights of prisoners and adherence to the country’s stated list of human rights often remain murky, erratic and contradictory.

HRW officials visited Libya for 10 days during April, and continue to monitor the situation from outside the country. Libya has not responded publicly to the report.

Libya's stance on immigrants was criticized in September [JURIST report] by another HRW report, which also attacked Italy's policies. Libya has also undergone continued criticism for the alleged massacre [BBC backgrounder] that took place at Abu Salim prison in 1996. Prisoners, mostly political, protested conditions there and up to 1,220 were killed by guards [HRW report]. Trials of those responsible have been slow in coming.





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Illinois Democrats welcome draft memo on local prison for Guantanamo detainees
Jaclyn Belczyk on December 14, 2009 9:08 AM ET

[JURIST] Illinois Governor Pat Quinn and Senator Dick Durbin (D-IL) [official websites] said Friday that a leaked memo [text] signals that the US government intends to transfer Guantanamo Bay [JURIST news archive] detainees to the Thomson Correctional Center (TCC) [DOC backgrounder] in northwestern Illinois. The memo from the attorney general, leaked last week to conservative website Big Government [website], is dated December 10, 2009, and directs the secretary of defense to "relocate detainees currently held at the Guantanamo Detention Facility to the TCC as expeditiously as possible." A White House official said that no final decision has been made [AP report], but Quinn and Durbin said they were encouraged by the memo, nonetheless.

Last week, the Washington Post reported that the Obama administration is seeking Illinois congressional support [JURIST report] for a plan to purchase the TCC to house terrorism suspects currently being held at Guantanamo. Both Durbin and Quinn favor [JURIST report] moving Guantanamo detainees to the northwestern Illinois prison facility. It is estimated that the facility could bring 2,340-3,250 new jobs to the community and provide an estimated $790 million to $1.09 billion economic impact over four years. Not all local leaders support the possible transfer of accused terrorists to Illinois, however. In November, US Representative Mark Kirk (R-IL) [official website] wrote a letter [text] to President Barack Obama, urging him not to transfer detainees to the TCC because of fears it would lead to terrorist activity in the Chicago area. Even if the prison is chosen as a domestic facility for Guantanamo transferees, in order to hold detainees in US, Congress would have to change a law specifically prohibiting detainee transfers into the US except for trials [JURIST report]. A Michigan state prison has also been suggested as a possible holding facility for ex-Guantanamo detainees, but local residents have protested the possible transfers [JURIST reports].






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Bulgaria to consider accepting Guantanamo detainee
Patrice Collins on December 13, 2009 1:46 PM ET

[JURIST] Bulgarian Prime Minister Boyko Borisov [official profile, in Bulgarian] agreed [Standart report] Saturday to consider accepting one Guantanamo Bay [JURIST news archive] detainee after a request from the Obama administration, though the Bulgarian Parliament [official website, in Bulgarian] would make the final decision. Borisov stated that Bulgaria will be supported by its North Atlantic Treaty Organization (NATO) [organization website] allies for its decision but does not expect something in return from the US. The Bulgarian media claims that it received a letter [Mediapool report, in Bulgarian] written by US special envoy Daniel Fried to Borisov, asking Bulgaria to accept Guantanamo prisoners. Fried is reported to have already discussed the transfer with Bulgarian Interior Minister and Deputy Prime Minister Tsvetan Tsvetanov [SNA backgrounder]. Council of Europe [official website] Commissioner for Human Rights Thomas Hammarberg [official profile] has previously called upon [JURIST report] European states to open their doors to Guantanamo prisoners.

Earlier this month Albanian Prime Minister Sali Berisha [official website] told reporters that closing Guantanamo is "human rights issue" when expressing his willingness [JURIST report] to accept more detainees. In November, four Guantanamo detainees were transferred to three European countries, as the detainee population at the detention facility continues to be reduced. Two Tunisian natives were transferred to Italy [press release] where they will stand trial. The other detainees include an unidentified Palestinian man transferred to Hungary [press release] and an Algerian who was transferred to France [press release]. In September, Belgium accepted a detainee for resettlement after sending a delegation to Guantanamo to interview [JURIST reports] the candidate.






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Ninth Circuit denies disclosure of Proposition 8 internal campaign documents
Zach Zagger on December 13, 2009 11:11 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Friday that California same-sex marriage [JURIST news archive] supporters cannot access Proposition 8 [JURIST news archive] supporters' internal campaign communications. The court denied disclosure of the documents on First Amendment [text] grounds, finding that it would violate the right of freedom of association. Proponents of same-sex marriage wanted to use the documents as evidence in the upcoming suit challenging Proposition 8 to show that its passage was "the result of disapproval or animus against a politically unpopular group." The court, however, did not agree that this was a valid reason to infringe First Amendment rights:


Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights. Plaintiffs have not on the existing record carried that burden in this case.

The ruling reverses a decision by Judge Vaughn Walker of the US District Court for the Northern District of California [official website], which had compelled disclosure. The case is scheduled to go to trial before Walker on January 11.

Last month, the Ninth Circuit affirmed [JURIST report] Walker's denial of a motion to intervene in the suit by conservative advocacy group the Campaign for California Families. The group sought to intervene because it believed that the current groups defending the suit would not adequately represent its interests. Walker ruled in August that several advocacy organizations representing both sides of the issue could not intervene in the lawsuit [complaint, PDF] challenging Proposition 8. The lawsuit was filed [JURIST report] in May by former US solicitor general Ted Olson and prominent litigator David Boies [professional profiles], who were opposing counsel in Bush v. Gore [opinion], which decided the outcome of the contested 2000 US Presidential election [JURIST backgrounder].





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Family of Guantanamo detainee files lawsuit against Kenya government
Patrice Collins on December 12, 2009 1:40 PM ET

[JURIST] The family of Kenyan Guantanamo Bay [JURIST news archive] detainee Mohamed Abdulmalik has filed a lawsuit against the Kenyan government claiming that he was illegally detained, tortured, and rendered to US authorities. The suit seeks Abdulmalik's return to Kenya and USD $30 million in damages. Abdulmalik was originally arrested by the Kenyan Anti-terrorism Police Unit in Mombassa in 2007 in connection with the 2002 bombing of a resort hotel [NYT report] and a failed attempt [BBC report] to shoot down an Israeli charter plane. He was then taken into US custody and eventually transfered to Guantanamo [DOD press release] where he allegedly confessed [HRW report] to the crimes, although his Combatant Status Review Tribunal [official website] report is still classified. British human rights group Reprieve [advocacy website], which has helped Abdulmalik's family, stated [Standard report] that the case points out the illegal means by which detainees have ended up in Guantanamo. Kenyan authorities deny [GlobalSecurity report] arresting Abdulmalik, whom they claim is not a Kenyan citizen, and handing him over to the US military.

The lawsuit comes as US authorities are working to close the Guantanamo prison. US President Barack Obama originally pledged to close the facility by January, but in October, US Attorney General Eric Holder [official profile] announced that the Obama administration may miss its January deadline for closing Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials. The Center for American Progress (CAP) [advocacy website] released a report [JURIST report] last month criticizing the White House for several shortfalls in its decision-making process regarding closure of the facility and disposition of detainees.






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Philippines president lifts martial law declaration
Jaclyn Belczyk on December 12, 2009 11:35 AM ET

[JURIST] Philippines President Gloria Macapagal-Arroyo [official website; BBC profile] on Saturday recalled Proclamation 1959 [text, PDF], lifting the declaration of martial law [press release] and reinstating habeas corpus in the province of Maguindanao. Executive Secretary Eduardo Ermita announced that martial law had been lifted, saying that the objectives of Proclamation 1959 had been met. The objectives were quelling the rebellion, arresting suspects from last month's massacre, securing the safety of witnesses, filing appropriate charges against the suspects, disarming illegal armed groups, restoring law and order and press freedom, and restoring civilian government. The proclamation declaring a state of emergency will remain in effect [Manila Bulletin report], and the deployment of troops to Maguindanao will continue.

Earlier this week, Amnesty International (AI) [advocacy website] urged [JURIST report] Philippine authorities to establish a timetable to end martial law. The National Union of People's Lawyers (NUPL) [advocacy website] and other groups petitioned the Philippines Supreme Court [official website] to reject the declaration of martial law. The proclamation was announced [JURIST report] last Saturday, and is a result of instability in the province following a politically motivated attack that left 57 dead last month. Government authorities last week arrested several suspects [BBC report] in connection with the attack, including Maguindanao Governor Andal Ampatuan Sr., and subsequently discovered an "arsenal of weapons" buried nearby. Military officials believed that rebels loyal to the Ampatuan family intended to launch a rebellion. The family is suspected of ordering the November 23 attack [AFP report] against political rival Esmael Mangudadatu, who was traveling with family, aides, and journalists to file as a candidate in an upcoming gubernatorial election.






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Turkish constitutional court bans pro-Kurdish party
Ann Riley on December 12, 2009 9:48 AM ET

[JURIST] The Constitutional Court of Turkey [official website, in Turkish] voted Friday to ban the Democratic Society Party (DTP) after finding the party to have been cooperating with the Kurdish Workers Party (PKK) [GlobalSecurity backgrounder], a separatist, designated terrorist group. The vote occurred after the PKK claimed responsibility [AP report] Thursday for killing six Turkish soldiers. Constitutional Court Chairman Hasim Kilic [official profile, in Turkish] told reporters that the DTP was banned under Articles 68 and 69 of the Turkish Constitution [text, in Turkish] and the Political Parties Law. DTP leaders Ahmet Turk and Aysel Tugluk [JURIST news archives] were expelled from the Turkey Grand National Assembly [official website, in Turkish], in which the DTP, the largest pro-Kurdish party, holds 21 seats. According to statements by Turk, the remaining 19 seated members, while having the option to remain in parliament as independents, will boycott the session. In addition, 35 other members of DTP, including Leyla Zana [NNDB profile], who was sentenced to 10 years [JURIST report] for supporting the PKK, have been barred from joining any political party for five years. Violent protests and riots have ensued in the Kurdish populated southeast. The European Union (EU) [official website], having previously warned that banning the DTP would violate Kurdish rights, issued a statement of concern saying the ban was an "obstacle to democratization."

The EU reported in October that Turkey’s human rights record has compromised its accession bid [JURIST report]. Turkey has faced several obstacles as it works toward accession to the EU [criteria materials], including constitutional reforms. The EU has told Turkey to amend its constitution that was written under military rule and limits freedom of expression and freedom of religion. Since August, Prime Minister Recep Tayyip Erdogan [BBC profile] has sought to end Turkey’s 25-year conflict [BBC report] with the PKK, which has been a major impediment to Turkey's bid to join the EU. In July, the Constitutional Court narrowly rejected a proposal to ban [JURIST reports] the Islamic Justice and Development Party (AKP) [party website, in Turkish], which was accused of ignoring the secular principles of the country's constitution, with only six of the 11 judges favoring to dissolve the party. In May, the EC-Turkey Association Council urged [JURIST report] Turkey to improve its human rights record. Last year, European Commission President Jose Manuel Barroso [official profile] addressed the Turkish parliament to applaud the government's efforts to reform a controversial provision of the Turkish penal code [JURIST reports] but stressed that further efforts would be necessary.






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Romania constitutional court orders partial recount of presidential votes
Jaclyn Belczyk on December 11, 2009 3:45 PM ET

[JURIST] The Constitutional Court of Romania [official website, in Romanian] on Friday ordered a recount [press release, PDF; in Romanian] of void ballots from the country's disputed presidential election. After the first round of elections in November produced no clear winner, incumbent Traian Basescu [official website, in Romanian] and Social Democrat Mircea Geoana [campaign website, in Romanian] faced a runoff election on Sunday. Both candidates declared victory [BBC report] Sunday night, but official results showed that Basescu had won by a mere 70,000 votes, garnering 50.3 percent of the total votes. The court order requires election officials to determine whether 138,000 ballots were improperly declared void, which could potentially sway the election in favor of Geoana. Although Geoana supporters have accused Basescu of election fraud, some analysts believe that the court will not ultimately overturn [AP report] the election results.

Many voters had hoped that the election would help repair Romania's image as the most corrupt member of the European Union (EU). In February, the European Commission (EC) [official website] reported [text, PDF] that Romania has not made sufficient progress in its anti-corruption campaign since its accession [JURIST reports] to the European Union (EU) two years ago. In June 2007, the EC issued a progress report [JURIST report], saying that Romania needed to do more to achieve judicial reform, and combat corruption and organized crime. In July 2008, Romania was again criticized [EU report] for its failure to address the same issues.






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Canada opposition measure seeks release of prisoner treatment documents
Megan McKee on December 11, 2009 3:03 PM ET

[JURIST] Canada's federal opposition parties combined Thursday to pass an unusual measure seeking to compel the Conservative government of Prime Minister Stephen Harper to release confidential records concerning the treatment of detainees captured by Canadian troops in Afghanistan. In an effort to shed light on alleged prisoner abuse by Afghans after receiving prisoners handed over to them by Canadian forces, the Liberals, the New Democratic Party [party websites], and the Bloc Quebecois [party website, French] endorsed a Commons motion [CP report] that calls for the release of thousands of uncensored documents. The minority Conservative government immediately voiced concern [Globe and Mail report] that the release of such information could be helpful to the enemy, jeopardize national security, and is contrary to national secrecy laws. The opposition has referenced Parliament's absolute right to request the government to produce uncensored documents, as established by the Canadian Constitution [text]. If Harper's minority government chooses to ignore the motion, as has been suggested, the opposition parties could proceed with a vote to find the government in contempt, and possibly create a situation in which the courts will be asked to define the limits of parliamentary privilege.

This latest issue involving detainee treatment came up last month after Canadian diplomat Richard Colvin testified [JURIST report] before a Commons committee that all enemy combatants captured in 2006 and 2007 by Canadian forces were likely tortured upon their transfer to Afghan authorities. Earlier this month, the Canadian government released [JURIST report] more than 40 redacted e-mails [text, PDF] sent by Colvin to then-foreign minister Peter MacKay [official profile] raising concerns about the torture of transferred detainees. The e-mails, which Colvin alleges were sent in violation [Montreal Gazette report] of instructions to avoid written communication, were requested by the House of Commons Special Committee on the Canadian Mission in Afghanistan [official website] in order to corroborate the testimony Colvin gave to the committee. Throughout the spring of 2006, Colvin relayed allegations made by the International Committee of the Red Cross [official website] that Afghan authorities were routinely torturing detainees, and that by refusing information requests and failing to provide timely notice of transfer to Afghan custody, the Canadian military was hindering efforts to track Afghan detainees and monitor their treatment. Peter Tinsley, Chair of the Military Police Complaints Commission (MPCC) [official website], also released redacted copies of the e-mails Wednesday at the request of Amnesty International (AI) and the British Columbia Civil Liberties Association (BCCLA) [advocacy websites] after finding that the contents had already been selectively leaked [Toronto Star report] to media organizations.






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House approves bill to create consumer financial protection agency
Jaclyn Belczyk on December 11, 2009 2:47 PM ET

[JURIST] The US House of Representatives [official website] voted 223-202 [roll call vote] Friday to approve a bill [HR 4173 materials] that would create a consumer financial protection agency and strengthen oversight of the financial industry. The Wall Street Reform and Consumer Protection Act of 2009 [materials] would also create a $150 billion industry-backed fund for the dismantling of large failed financial firms and outlaw many abusive and predatory lending practices. The vote came after the House rejected several proposed amendments [Bloomberg report], including one that would have created a council of regulators to oversee financial consumer protections instead of the single agency, which is opposed by the banking industry. The Senate will now consider similar legislation, a version of which was introduced [JURIST report] by Senate Banking Committee [official website] chair Chris Dodd (D-CT) [official website] last month.

The US House Financial Services Committee [official website] approved a bill [JURIST report] to create a consumer financial protection agency in October. The committee passed the legislation after originally delaying [JURIST report] it at the behest of financial industry leaders in July. The creation of the agency is a key step in the Obama administration's plans to tighten financial industry regulations. The administration originally proposed a broad series of financial regulatory reforms [press release] in June, calling [JURIST report] for the creation of a consumer financial protection agency, among other reforms.






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Russia PM urges greater anti-corruption efforts in wake of nightclub fire
Jaclyn Belczyk on December 11, 2009 12:25 PM ET

[JURIST] Russian Prime Minister Vladimir Putin [official website, in Russian] said Thursday that last week's nightclub fire in Perm [BBC report] exposed widespread corruption [press release, in Russian; video, in Russian] among bureaucrats. At a cabinet meeting, Putin said that documents were falsified and officials were bribed to look the other way on safety violations. Putin said, "[t]his obviously reflects all the vices of our bureaucracy: its incompetence, its corruptness, its merger with business in areas where it is not needed, where it should not be allowed." Putin called for greater oversight of officials in order to end corruption. Putin's statement echoes similar remarks by Russian President Dmitry Medvedev [official website, in Russian] in which he called for stricter punishment [AP report] for those who violate fire safety laws. Another victim died Friday, bringing the death toll to 142 [RIA Novosti report], with 88 remaining hospitalized. Perm's regional administration resigned [Moscow Times report] Wednesday.

Last month, Transparency International (TI) [advocacy website] ranked Russia 146th out of 180 countries in its Corruption Perceptions Index (CPI) [text; JURIST report]. In January, First Deputy Prosecutor General Alexander Buksman [official profile] reported that corruption cases are increasing [JURIST report] in Russia and now account for about 1.5 percent of recorded crimes there. Last December, Medvedev signed anti-corruption legislation [JURIST report] imposing income reporting requirements on public officials and restricting gifts. Medvedev had urged anti-corruption measures since taking office [JURIST reports] in May 2008. In June 2008, rights group Freedom House [advocacy website] released a report finding that corruption and repression were increasingly threatening legal rights [JURIST report] in former Soviet republics like Russia, Azerbaijan, and Kazakhstan, with Russia's court system in particular showing significant deterioration of the rule of law.






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Senate Judiciary Committee approves journalist shield bill
Matt Glenn on December 11, 2009 10:46 AM ET

[JURIST] The US Senate Judiciary Committee [official website] approved a bill Thursday that would protect journalists' abilities to shield sources in federal court proceedings. Under the Free Flow of Information Act [S 448 materials], which was approved 14-5, the federal government would not be able compel a journalist to produce protected documents or sources unless the government shows it has exhausted other means of obtaining the information, that the information sought is vital to the resolution of the case, and that compelling the production of the document or source is in the public interest. The bill contains exceptions to these protections for cases in which the journalist has witnessed a crime or where the information is necessary to stop, prevent, or mitigate a specific death, kidnapping, or case of serious bodily harm. The bill also provides an exception for the government when it can show that national security interests are at stake. Senator Arlen Specter (D-PA) [official website], one of the bill's co-sponsors, praised the legislation [press release], saying it "creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants." If the Senate approves the bill, it must be reconciled with a similar House bill before passing into law.

The version of the bill passed Thursday represents a compromise [JURIST report] reached in October among the Obama administration, lawmakers, and news organizations. In September, the Obama administration informed Congress that it objected [JURIST report] to the proposed legislation based on national security concerns. 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]. Other journalists have also faced contempt charges for refusing to reveal sources. In November, the US Court of Appeals for the District of Columbia vacated [JURIST report] a contempt order [JURIST report] against former USA Today reporter Toni Locy [JURIST news archive], who had refused to reveal government sources for a series of articles she wrote about the 2001 anthrax attacks [JURIST news archive].






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California judge tentatively invalidates Colorado River water use agreement
Jaclyn Belczyk on December 11, 2009 9:46 AM ET

[JURIST] A California judge on Thursday tentatively ruled [opinion, PDF] that a 2003 Colorado River water use agreement is invalid. The agreement settled a dispute over how to divide the Colorado River between California and six other states: Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming. Under the agreement, California would significantly reduce the amount of water diverted from farms to California cities over the course of 75 years. Judge Roland Candee of the Sacramento County Superior Court [official website] tentatively found that the agreement was invalid because the state of California agreed to pay to restore the Salton Sea in southeastern California without putting a limit on spending. Candee wrote:


The focus under the facts of these coordinated proceedings is on whether "the Contracts, and each and every portion of such Contracts, are valid, legal and binding and are ... in conformity with all applicable provisions of law ..." The question is, accordingly, whether the State obligation ... withstands judicial scrutiny under a contract validation action standard. ... The answer again must be "no". To hold otherwise would point out, for all to see, a way to contract around the constitutional debt prohibition and the constitutional requirement for an appropriation before expenditure found in our Constitution.

Candee will hold a hearing next week to decide whether to make the ruling final.

Under the agreement, Imperial Valley, the state's largest consumer of Colorado River water, would have to sell up to 90 billion gallons a year to San Diego. The Imperial Irrigation District [website] had asked Candee to approve the agreement in order to avoid future legal challenges. Opponents, including many Imperial Valley landowners, argued that the state's commitment to pay to restore the Salton Sea could have cost the state as much as $60 million.





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Ninth Circuit rejects Patriot Act challenge for lack of standing
Matt Glenn on December 11, 2009 9:05 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that a lawsuit seeking to declare parts of the Patriot Act [JURIST news archive] unconstitutional must be dismissed for lack of standing. Brandon Mayfield [JURIST news archive], an attorney arrested [JURIST report] in 2004 based on FBI error in connection with the 2004 Madrid train bombings [BBC backgrounder; JURIST news archive], had argued that parts of the Patriot Act amending the Foreign Intelligence Surveillance Act (FISA) violated the Fourth Amendment [text]. Specifically, Mayfield alleged that FISA provisions allowing the government use electronic surveillance [50 USC § 1804] and physically search [50 USC § 1823] his home without probable cause violated his Fourth Amendment rights. In reversing a lower court decision [opinion, PDF; JURIST report], the court refused to rule on the merits of the case, finding that Mayfield could not pursue his claim because a settlement [text, PDF; JURIST report] between Mayfield and the Government expressly limited Mayfield's possible relief to a declaratory judgment that the provisions violated the Fourth Amendment. The court held:


[I]n light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family.

The court also found that the settlement precluded the court from ordering the government to destroy all materials connected with the surveillance and search of Mayfield's home and that such actions would not be compelled even if the statutory provisions were found unconstitutional.

Mayfield originally alleged that the FBI orchestrated his arrest because of his religious beliefs as a Muslim, though a 2006 Department of Justice (DOJ) Inspector General report [text] refuted those claims [press release]. After an investigation into his arrest and detention, the DOJ Inspector General cleared FBI agents involved in the incident of any wrongdoing and made several suggestions for improvements to the fingerprint identification process that have since been implemented by the DOJ. The settlement agreement called for the government to pay Mayfield $2 million and issue a formal apology [text, PDF]. Mayfield was arrested after authorities mistakenly concluded [JURIST report] his fingerprints matched those on a bag holding detonators used in the bombing.





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Uganda parliament outlaws female genital mutilation
Jaclyn Belczyk on December 11, 2009 8:37 AM ET

[JURIST] The Ugandan Parliament [official website] voted unanimously Thursday to outlaw [press release] female genital mutilation (FGM) [UN backgrounder]. Under the new legislation [AFP report], anyone who conducts the procedure faces a 10-year prison sentence, and anyone convicted of aggravated FGM faces life imprisonment. Aggravated FGM would include situations where the woman dies, is disabled, or is infected with HIV/AIDS. Human rights groups have welcomed the legislation [BBC report] but have also urged education campaigns to ensure that the practice is stopped. The bill must now be signed by Ugandan President Yoweri Kaguta Museveni [official profile].

FGM is not widely practiced in Uganda but does occasionally occur in the northeastern part of the country. According to the UN, approximately 2 million girls undergo FGM every year, with Egypt, Ethiopia, Kenya, Nigeria, Somalia, and the Sudan accounting for 75 percent of all cases. Consequences can include prolonged bleeding, infection, infertility, and death. In 2007, the UN passed a resolution [materials] calling for an end to the practice.






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Federal judge finds Pentagon in contempt for failing to record Guantanamo testimony
Jaclyn Belczyk on December 10, 2009 4:14 PM ET

[JURIST] A judge in the US District Court for the District of Columbia [official website] on Thursday found [order, PDF] the US Department of Defense (DOD) [official website] in contempt for failing to videotape the testimony of Guantanamo Bay [JURIST news archive] detainee Mohammed Al-Adahi. Al-Adahi had petitioned for habeas relief in 2005, which the court granted [JURIST report] in August, and Judge Gladys Kessler had directed the DOD to videotape the testimony at the merits hearing in June so that the public and news media could see it. The government failed to comply with that order, claiming it was "due to oversight and miscommunication." In her order, Kessler wrote:


The purpose of the Court's Order requiring the Government to videotape Petitioner's testimony was to ensure the maximum amount of public accessibility to the judicial process. By requiring the Government to videotape Petitioner's direct testimony and crossexamination, and then make it public after classification review, the Court sought to ensure that the public would have an opportunity to observe as much of the testimony as possible. Thus, there are two other justifications for imposing sanctions against the Government: to minimize the damages to the public's lost opportunity to observe an actual Guantanamo Bay trial (or "Merits Hearing," as it is referred to), and to deter further noncompliance with court orders.

Kessler order the government to post a transcript of Al-Adahi's testimony and to provide a detailed explanation as to how it will avoid such oversight in the future.

The government is currently appealing [AP report] Kessler's decision to grant Al-Adahi's petition for habeas corpus. The government argues that Al-Adahi, who has been detained at Guantanamo Bay since 2002, was a supporter or member of the Taliban and/or al Qaeda, claiming that Al-Adahi had acted as an instructor at al Qaeda camp al Farouq, had familial ties to both the Taliban and al Qaeda, had been employed as a bodyguard for Osama bin-Laden and that Al-Adahi's story lacked credibility. Kessler rejected the government's arguments, finding "no reliable evidence in the record" to support its position.





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Russia Supreme Court bans Jehovah's Witness congregation
Sarah Paulsworth on December 10, 2009 2:55 PM ET

[JURIST] The Russian Supreme Court [official website, in Russian] upheld a lower court decision [press release, in Russian] to shut down the Taganrog Jehovah's Witness congregation and ban the distribution of 34 Jehovah's Witness publications on Tuesday. Both the Jehovah's Witness congregation and the publications are "extremist," the Supreme Court said [Forum 18 report] in its decision. In response to the Supreme Court's decision, Chairman of the Presiding Committee of the Administrative Center of Jehovah's Witnesses in Russia, Vasily Kalin, said [press release]:


I am very concerned that this decision will open a new era of opposition against Jehovah's Witnesses, whose right to meet in peace, to access religious literature and to share the Christian hope contained in the Gospels, is more and more limited. When I was young I was sent to Siberia for being one of Jehovah's Witnesses and because my parents were reading The Watchtower, the same journal being unjustly declared 'extremist' in these proceedings.

A Moscow-based Jehovah's Witness congregation was previously banned [JURIST report] in 2004. Leaders of that congregation joined a lawsuit already pending in the European Court of Human Rights (ECHR) [official website] over the harassment of Jehovah's Witnesses in Russia. The case has not yet been considered. In a separate case, the ECHR ruled [judgment text] in 2007 that Russia violated Article 9 of European Convention on Human Rights [text, PDF] by failing to register the Chelyabinsk congregation of Jehovah's Witnesses.

The US Department of State (DOS) [official website] chronicled the persecution of Jehovah's Witnesses and other religious minorities in Russia [report] in its 2009 International Freedom of Religion Report [JURIST report]. In October, the ECHR ruled [JURIST report] that Russia interfered with freedom of religion by refusing to register two Scientology groups as "religious organizations." In February, the Court ruled [JURIST report] that that the Russian government was guilty of infringing on US missionary Patrick Nolan's religious freedoms and other human rights by expelling him from the country in 2002 under national security pretenses.





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Iran post-election rights abuses worst in 20 years: report
Jaclyn Belczyk on December 10, 2009 2:11 PM ET

[JURIST] Iranian human rights violations following the disputed presidential election [JURIST news archive] in June were among the worst in the past 20 years [press release], according to a report [text, PDF] published Thursday by Amnesty International (AI) [advocacy website]. The report, "Iran: Election contested, repression compounded," contains testimony from individuals detained during the protests that ensued after the election. According to AI, individuals were unlawfully detained, beaten, tortured, and raped, resulting in numerous deaths in detention. According to the report:


The presidential election on 12 June 2009 heralded sweeping repression and the eruption of mass protests on a scale not seen since the revolution that established the Islamic Republic of Iran in 1979. Long-standing patterns of human rights violations, including severe restrictions on the rights to freedom of expression, association and assembly, intensified during the protests, and have continued since, leading to the most severe period of repression since the end of the revolutionary period which culminated in the "prison massacre" of 1988. As a result, the many Iranians who dispute the outcome of the election are living with a heightened fear of arbitrary arrest and detention, torture, unfair trial and even execution.

AI called on the Iranian government to conduct a full and independent investigation into the allegations to hold accountable those responsible for rights violations. AI has also urged Iran's Supreme Leader Ayatollah Ali Khamenei to allow UN human rights experts to visit Iran to help conduct the investigation.

Thousands were arrested during the protests following the contested June election, and about 140 have been tried in court to date. Of those tried, 81 have been convicted and sentenced, including former vice president Mohammad Ali Abtahi who was sentenced last month [JURIST report]. The government's response to the protests has been widely criticized, and human rights groups have called for [JURIST report] the UN General Assembly [official website] to appoint a special envoy to investigate allegations of human rights abuses in Iran since the election. Alleged human rights abuses of detainees include sexual assault, beatings, and forced confessions [JURIST reports].





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ACLU weighing program cuts as largest anonymous donor reduces contribution
Jaclyn Belczyk on December 10, 2009 12:25 PM ET

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website; JURIST news archive] announced Wednesday that its largest anonymous donor will be sharply cutting donations next year [press release] in light of the current economic crisis. The ACLU released a statement [text, PDF] from philanthropist David Gelbaum in which he publicly identified himself and explained that his "investments in alternative, clean energy companies have placed [him] in a highly illiquid position as a result of the general credit crisis in the American and world financial systems." Gelbaum donated $94 million to the ACLU between 2005, and 2009, including his most recent gift of more than $20 million, approximately 25 percent of the ACLU's annual budget. Gelbaum will also be reducing donations to the Sierra Club and the Iraq Afghanistan Deployment Impact Fund [advocacy websites]. Gelbaum said that "[t]he future viability of these programs will depend on the generosity of others." Although several other organizations have already pledged funds [NYT report] to the ACLU, it is unclear how great the budget shortfall will be and what programs will have to be cut.

The ACLU's budget has already suffered due to a decline in giving resulting from the Bernard Madoff [JURIST news archive] scandal. The ACLU has been forced to cut 10 percent of its national staff, or 36 jobs, and Executive Director Anthony Romero has taken a pay cut. The organization has also instituted a hiring freeze. The ACLU, founded in 1920, describes itself as "our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country."






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Europe rights court hears Ireland abortion law challenge
Ximena Marinero on December 10, 2009 11:51 AM ET

[JURIST] The European Court of Human Rights (EHCR) [official website] held a hearing [press release; video] Wednesday in a case brought by three women alleging that current Irish abortion [JURIST news archive] laws violate their rights under the European Convention on Human Rights [text]. The three women, who all traveled to the UK to have abortions, lodged the complaint in July 2005, alleging that the current Irish abortion laws make the procedure "unnecessarily expensive, complicated, and traumatic." The complaint invokes the Article 2 right to life, Article 3 prohibition of inhuman or degrading treatment, and Article 8 right to respect for private and family life of the Convention. The Irish Family Planning Association (IFPA) and the British Pregnancy Advisory Service (BPAS) [advocacy websites] are both supporting the women's suit. The IFPA commented [press release] that "women and girls' rights are disproportionately infringed upon by the inaccessibility and criminalisation of safe and legal abortion services in Ireland." A judgment is expected [Irish Times report] in six to eight months.

Abortion laws in Europe vary widely and have been the subject of much social and political debate. Irish and Spanish abortion laws are among the most restrictive in Europe. One of the main concerns of Irish voters during the Lisbon Treaty [JURIST news archive] referendum [JURIST report] was that it would affect Irish abortion laws. In September, the Spanish Council of State [official website, in Spanish] unanimously approved [JURIST report] a proposed law [text, DOC; in Spanish] that would relax abortion restrictions, leading to widespread protests [JURIST report].






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New Jersey Senate postpones same-sex marriage vote
Jaclyn Belczyk on December 10, 2009 10:51 AM ET

[JURIST] Supporters of a New Jersey same-sex marriage [JURIST news archive] bill [text, PDF] decided Wednesday night to delay a State Senate vote scheduled for Thursday. The bill's sponsors, Democratic senators Raymond Lesniak and Loretta Weinberg, withdrew the bill [NYT report] from the senate agenda, saying they wanted to allow a hearing in the general assembly before the vote took place. Opponents of the legislation have criticized the delay as an affront to the legislative process, while supporters have said that a hearing in the general assembly is the best way for everyone to voice their opinions. The New Jersey Senate Judiciary Committee voted 7-6 Monday in favor of the bill [JURIST report], the first time that any body in the state legislature [official website] has approved same-sex marriage legislation. The vote came after hours of debate [NYT report] with testimony from supporters and opponents of the legislation. Supporters are hoping to pass the legislation before outgoing Governor Jon Corzine (D) leaves office on January 19. He has promised to sign the bill [CNN report], but Governor-elect Chris Christie (R) has vowed to veto it.

Last week, the New York Senate defeated legislation [JURIST report] to allow same-sex marriage. In November, Maine voters vetoed [JURIST report] a same-sex marriage bill passed by that state's legislature. The Maine vote came a year after California voters approved Proposition 8 [JURIST report], an amendment to the state constitution overturning the state's high court ruling [JURIST report] in favor of same-sex marriage. Same-sex marriage is legal in four states in the US - Massachusetts, Connecticut, Iowa, and Vermont - and will be legal in New Hampshire [JURIST reports] starting January 1. New Jersey has recognized same-sex civil unions [JURIST report] since 2006.






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China executes former securities trading executive for corruption
Ximena Marinero on December 10, 2009 10:40 AM ET

[JURIST] Chinese authorities on Tuesday executed [Xinhua report] a former general manager of a major Chinese securities trading corporation who was convicted of embezzling and misappropriating more than USD $14 million. Yang Yanming was convicted and sentenced to death in December 2005 in the Beijing No. 1 Intermediate People's Court. In April, the Higher People's Court of Beijing denied his appeal, and his sentence was approved by the Supreme People's Court [official website, in Chinese]. Yang headed securities trading at Galaxy Securities [corporate website], formerly China Great Wall Trust and Investment Corporation between 1998 and 2003. Chinese authorities have reported that Yang refused to disclose the location of about $10 million of the funds. Yang's execution is the first time the Chinese government has executed a high executive in the finance sector.

In August, Chinese authorities executed [JURIST report] the former head of the company that owns the Beijing Capital International Airport after he was convicted of bribery and embezzlement. Li Peiying, former chairman of the Capital Airports Holding Company [corporate website], was sentenced to death in February after being convicted of accepting bribes of 26.61 million yuan (USD $3.9 million) between 1995 and 2003 and embezzling 82.5 million yuan for personal use between 2000 and 2003. In July, anti-death-penalty group Hands Off Cain [advocacy website] said that although the number of countries with capital punishment, as well as the total number of executions was down in 2008 [report] from the previous year, China continues to account for more executions [JURIST report] than any other country. In 2008, the country executed at least 5,000 people, or more than 87 percent of the world's total. China said in July that it plans to reduce [China Daily report] the number of executions it conducts, reserving the death penalty for only a small number of severe crimes.






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Guantanamo detainee transferred to Kuwait
Jaclyn Belczyk on December 10, 2009 9:48 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced Wednesday that Kuwaiti Guantanamo Bay [JURIST news archive] detainee Fouad Al Rabiah has been transferred [press release] to the control of the Kuwaiti government. Al Rabiah, a Kuwaiti national, had been held at Guantanamo Bay for nearly eight years under suspicion of aiding al Qaeda and the Taliban. The transfer came after a judge in the US District Court for the District of Columbia [official website] in September granted [order, PDF] Al Rabiah's habeas corpus petition and ordered his release [JURIST report]. According to the DOJ, the "transfer was carried out under an arrangement between the United States and the government of Kuwait. The United States will continue to consult with the government of Kuwait regarding this individual."

Al Rabiah was one of three Kuwaiti nationals remaining at Guantanamo out of 12 who were detained there. In October, the DOJ announced that Kuwaiti Guantanamo detainee Khaled Al-Mutairi had been returned to his home country [JURIST report]. The US government alleged that Al-Mutairi had fought against American troops in Afghanistan, but in his almost eight years at the facility, no charges were ever filed. Al-Mutairi's release was ordered [JURIST report] by federal judge Colleen Kollar-Kotelly of the DC District Court when she granted his petition [opinion, PDF] for habeas corpus in July. In September, Kollar-Kotelly denied the petition [JURIST report] of Kuwaiti detainee Fawzi Khalid Abdullah Fahad Al Odah, who admitted to traveling to Afghanistan to meet with the Taliban. The other Kuwaiti remaining at Guantanamo [Miami Herald report] is Fayiz al Kandari, who allegedly trained with al Qaeda.






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Second Circuit blocks extradition of former Bosnia diplomat
Jaclyn Belczyk on December 10, 2009 8:51 AM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Wednesday that a US citizen who served as Bosnian ambassador to the UN cannot be extradited to Sarajevo to face charges of embezzlement. The appeals court reversed a decision by the US District Court for the Southern District of New York [official website], which had upheld the extradition of Muhamed Sacirbey in 2006. In granting Sacirbey's request for habeas relief, the appeals court determined:


While the factual and procedural history of this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been "charged" with a crime and requires that an arrest warrant and supporting materials be provided in order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the treaty that an individual be "charged" with an extraditable offense has not been satisfied. This defect falls within the narrow category of issues that is cognizable on habeas review of an extradition order; we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.

The court also noted that, "the Department of State is authorized by the extradition treaty and by statute to refrain from extraditing Sacirbey because he is a citizen of the United States."

Sacirbey served as Bosnia's first ambassador to the UN from 1992 to 2000. He is accused of embezzling [AP report] more than $610,000 from the Bosnian government but has testified that the allegations are politically motivated. The US Department of Justice granted Bosnia's request for Sacirbey's extradition in 2002.





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Cambodia genocide court to allow individual prosecutions for government actions
Zach Zagger on December 9, 2009 3:00 PM ET

[JURIST] The co-investigating judges for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] released an order [text, PDF] Wednesday that will allow the use of the controversial legal concept of joint criminal enterprise (JCE) [CTM backgrounder] to prosecute surviving Khmer Rouge [BBC backgrounder, JURIST news archive] leaders for government actions. JCE allows courts to charge defendants who may be guilty as part of a political regime for criminal acts done by others in the furtherance of the regime's authority. The judges found that JCE can only be used to prosecute crimes of international law and not for crimes under Cambodian law. The international crimes that can be prosecuted [ECCC press release] under JCE include crimes against humanity, war crimes (grave breaches of the 1949 Geneva conventions), genocide, crimes against internationally protected persons, and destruction of cultural property during armed conflict. The order to allow the use of JCE came after the defense team of former Cambodian foreign minister Ieng Sary [TrialWatch profile; JURIST news archive] requested that JCE not be applicable in the ECCC.

The ECCC, charged with trying those responsible for atrocities committed during the rule of the Khmer Rouge, named a new head co-prosecutor last week, after the September resignation [JURIST reports] of Canadian Robert Petit. UK lawyer Andrew Cayley, who will serve alongside a Cambodian prosecutor, has previously been in private practice defending alleged war criminal Charles Taylor [JURIST news archive] in The Hague. Also last week, the ECCC rejected [JURIST report] a request by Ieng Sary's lawyers to examine two international judges for bias saying that such a charge must be based on fact and not from mere press criticism. In February, HRW warned that ECCC trials were in danger of being tainted for their failure to follow fair trial standards, and in January a Cambodian court agreed to hear a corruption case [JURIST reports] involving two ECCC judges.






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Supreme Court hears arguments on arbitration act
Jaclyn Belczyk on December 9, 2009 1:33 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. [oral arguments transcript, PDF; JURIST report] on whether imposing class arbitration on parties is consistent with the Federal Arbitration Act (FAA) [9 USC § 1-14 text] when that issue is silent in the parties' arbitration clauses. The US Court of Appeals for the Second Circuit ruled [opinion, PDF] that construing the arbitration clause to permit class arbitration "did not manifestly disregard the law" because the parties specifically agreed that the arbitration panel would decide on the scope of the clause and, therefore, the panel did not exceed its authority. Counsel for the petitioners argued:


Unlike courts, arbitrators derive their authority solely from the consent of the parties to a particular agreement.

That agreement determines not only what the parties have agreed to arbitrate, but just as fundamentally, with whom they have agreed to do so. And when the agreement reveals no intent, no meeting of the minds to add participants, but the arbitrators nonetheless extend their reach to hundreds of parties of other contracts, they violate the basic principle reflected in the FAA that their authority is created and circumscribed by an agreement.

Counsel for the respondent argued:

What the arbitrators did here was interpret the contract as the parties asked them to. They did not impose their own policy judgment. And any judicial review is under very deferential FAA standards under Section 10, which is confined to correcting what amount to gross defects in the process.





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UK judge rules Guantanamo detainee can access 'torture' documents
Jaclyn Belczyk on December 9, 2009 11:43 AM ET

[JURIST] A UK High Court judge ruled Tuesday that British Guantanamo Bay [JURIST news archive] detainee Shaker Aamer must have access to secret documents that may contain evidence of torture. Aamer, the only British citizen remaining at the US military prison, petitioned the court [AP report] for access to the documents, which his lawyers believe show that his confessions were obtained through torture. Lord Justice Jeremy Sullivan ruled [BBC report] that Aamer, detained at Guantanamo since 2002, should have access to the documents, as the US government is currently working to determine whether he should be released. The British government expressed disappointment [AFP report] at the ruling and may try to block the release of the documents on the grounds that it would harm the public interest.

The ruling comes as the British government continues its legal battle to keep secret documents related to the alleged torture of former Guantanamo detainee Binyam Mohamed [JURIST news archive]. Last month, the UK High Court ruled [JURIST report] that the details of the Mohamed's detention in Pakistan in 2002 must be released, the latest in a series of back and forth rulings on whether redacted materials regarding Mohamed's detention should be disclosed. An October interim ruling [JURIST report] by Lord Justice Thomas and Justice Lloyd Jones resulted in a redacted release, which the High Court indicated it would revisit after receiving submissions from both the Foreign & Commonwealth Office (FCO) [official website] and Mohamed. Also in November, a separate judge on the High Court ruled that, in Mohamed's separate suit for damages, information relating to his treatment at Guantanamo Bay may be withheld [JURIST report] under a "closed material procedure." Mohamed was returned to the UK in February, after charges against him were dismissed in October 2008 [JURIST reports]. Mohamed had been held at Guantanamo Bay for four years, on suspicion of conspiracy to commit terrorism [JURIST report].






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Human rights continuing to deteriorate in Arab region: Cairo group report
Daniel Makosky on December 9, 2009 10:50 AM ET

[JURIST] Human rights conditions in 12 Arab nations continued to deteriorate last year, according to a report [text, PDF, in Arabic; synopsis, PDF] issued Tuesday by the Cairo Institute for Human Rights Studies (CIHRS) [advocacy website]. The publication, entitled "Bastion of Impunity, Mirage of Reform," is the group's second annual [press release]. The report condemns violations of human rights, including those against political and reform activists, focusing on Egypt, Tunisia, Algeria, Morocco, Sudan, Syria, Lebanon, Palestine, Iraq, Saudi Arabia, Bahrain, and Yemen. According to the report, Iraq [JURIST news archive] continues to be the region’s worst offender despite "relative improvements," while Egypt, Morocco, and Bahrain are identified as having regressed significantly since last year. The report criticizes the Organization of the Islamic Conference [official website] for its efforts to subvert human rights protections and international monitors on governmental accountability. Additionally, the League of Arab States [official website, in Arabic] is condemned for citing "national sovereignty" as grounds for refusing to take action against rights abuses in the region, including those occurring in Sudan [JURIST news archive].

CIHRS released its inaugural report [JURIST report], "From Exporting Terrorism to Exporting Repression," last year to coincide with the 60th Anniversary of the Universal Declaration of Human Rights [text]. That edition also found Iraq to be the leading offender in human rights violations, a conclusion similar to those of other prominent human rights and refugee [JURIST reports] organizations. Last year, the UN envoy to Iraq praised the creation of an Independent High Commission for Human Rights [JURIST report], calling it a "milestone" for human rights in the region.






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Federal judge reduces 'Cuban Five' spying sentences
Jaclyn Belczyk on December 9, 2009 10:08 AM ET

[JURIST] A judge on the US District Court for the Southern District of Florida on Tuesday reduced the sentences of two men convicted of spying for Cuba as part of the so-called "Cuban Five" [advocacy website; JURIST news archive]. Judge Joan Lenard reduced [Miami Herald report] the life sentence of Ramon Labanino, also known as Luis Medina, to 30 years and reduced the sentence of Fernando Gonzalez from 19 years to 18 years. Lenard had reduced the sentence of a third man, Antonio Guerrero, from life to 22 years in October. The reductions in sentences came after the US Court of Appeals for the Eleventh Circuit [official website] ruled last year that the sentences were excessive. Medina, Gonzales, and Guerrero said [press release] Tuesday:

Three of us have come to the Miami Court to be re-sentenced due to an order from the Eleventh Circuit Court of Appeals, which determined that our sentences had been erroneously imposed.

Our brother Gerardo Hernandez, who is serving two life terms plus 15 years, has been arbitrarily excluded from this re-sentencing process. His situation remains the principal injustice in our case. The US Government is well aware of the falseness of the accusations against him and the unfairness of his sentence.
The men plan to continue to seek a full pardon.

The men, considered national heroes in their homeland, were arrested in 1998 and convicted in 2001 of spying for Cuba. They admitted they were Cuban spies, but said they were watching the activities of exile groups opposed to former Cuban leader Fidel Castro [BBC profile], rather than the US government. In 2005, the Eleventh Circuit ruled [JURIST report] that the trial in Miami was biased due to community prejudice and extensive media coverage. The government appealed that decision, and during a rehearing [JURIST reports] before the full appeals court, the defendants argued that "the pervasive community prejudice against the Cuban government and its agents and the publicity surrounding the trial that existed in Miami prevented them from obtaining a fair and impartial trial." The full federal appeals court upheld [JURIST report] the convictions in 2006. The US Supreme Court in June declined to hear an appeal [JURIST report].





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Obama administration announces $3.4 billion Indian Trust settlement
Jaclyn Belczyk on December 9, 2009 9:00 AM ET

[JURIST] The US government announced [press release] Tuesday that a settlement agreement [text, PDF] worth more than $3.4 billion has been reached in a 13-year class action lawsuit [plaintiffs' website; JURIST news archive] concerning the US government's alleged mismanagement of trust funds [DOI materials] for a group of some 500,000 American Indians. US Attorney General Eric Holder and Secretary of the Interior Ken Salazar [official profiles] announced the settlement [DOI backgrounder] of Cobell v. Salazar at a press conference [video] Tuesday. Under the terms of the agreement, litigation will end, and the federal government will distribute funds totaling $1.4 billion to class members. The government will also establish a $2 billion Trust Land Consolidation Fund for the voluntary buy-back and consolidation of fractionated land interests. Finally, the government will establish a $60 million fund to provide better access to higher education for Indian youth. Plaintiffs had rejected [JURIST report] a $7 billion settlement offer in 2007, but named plaintiff Elouise Cobell said [press release] Tuesday:


Although we have reached a settlement totaling more than $3.4 billion dollars, there is little doubt this is significantly less than the full amount to which individual Indians are entitled. ...

Nevertheless we are compelled to settle now by the sobering realization that our class grows smaller each year, each month, and every day, as our elders die, and are forever prevented from receiving their just compensation. We also face the uncomfortable, but unavoidable fact that a large number of individual money account holders currently subsist in the direst poverty, and this settlement can begin to address that extreme situation and provide some hope and a better quality of life for their remaining years.

US President Barack Obama called the settlement [press release], "an important step towards a sincere reconciliation between the trust beneficiaries and the federal government and lay the foundation for more effective management of Indian trust assets in the future."

Congress established the Indian Trust in 1887 to hold proceeds from government-arranged leases of Indian lands. In July, the US Court of Appeals for the District of Columbia Circuit [official website] ordered [JURIST report] the US Department of the Interior (DOI) [official website] to provide an accounting in the case. Both parties appealed two separate rulings from the US District Court for the District of Columbia [official website]. In January 2008, district judge James Robertson ruled [JURIST report] that the DOI "unreasonably delayed" the accounting of billions of dollars of American Indian money, holding that it was impossible for the DOI or Congress to remedy the breach. In August 2008, Robertson ordered [JURIST report] the federal government to pay $455.6 million in restitution, despite plaintiffs' claims that they were owed $58 billion. In an incendiary opinion in 2005, district judge Royce Lamberth required the DOI to apologize to the plaintiffs [JURIST report] for its handling of the Trust, and to admit that information being provided to them regarding outstanding lost royalties on earnings from Indian land may be unreliable. In 2006, the DC Circuit removed Lamberth [JURIST report] from the case and reassigned it to Robertson.





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Ohio conducts first execution with single-drug lethal injection protocol
Jaclyn Belczyk on December 8, 2009 4:36 PM ET

[JURIST] Ohio prison officials on Tuesday conducted the first execution using a new single-drug lethal injection protocol. Death row inmate Kenneth Biros was executed after the US Supreme Court [official website] rejected [order, PDF] a last-minute stay application Tuesday morning. The US Court of Appeals for the Sixth Circuit had rejected [opinion, PDF] Biros's application for a stay of execution on Monday after overturning [JURIST report] a previous stay issued by the district court last month. Biros's attorneys had argued that the use of the new procedure constitutes human experimentation, but some commentators have said that the single-drug protocol is more humane than the previous three-drug method. Biros was convicted of a 1991 murder and attempted rape.

Ohio became the first state to adopt [JURIST report] the single-drug protocol last month. The state undertook a review of its lethal injection practices in September after the planed execution of inmate Romell Broom failed [JURIST reports] when a suitable vein for the drugs' administration could not be found. The new protocol consists of the intravenous injection of a single anesthetic, and provides for the intramuscular injection of two other drugs if an appropriate vein cannot be found.






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Supreme Court hears arguments in Conrad Black fraud appeal
Jaclyn Belczyk on December 8, 2009 3:50 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases related to "honest services" fraud. In Black v. United States [oral arguments transcript, PDF; JURIST report], the Court heard arguments on the appeal of Canadian-born former media mogul Conrad Black [CBC profile; JURIST news archive]. The Court is considering 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]. In 2007, Black was convicted of mail fraud and obstruction of justice and sentenced [JURIST reports] to 78 months in prison. The US Court of Appeals for the Seventh Circuit rejected [opinion, PDF; JURIST report] Black's appeal, holding that § 1346 may be applied in a private setting regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim. Counsel for the petitioners argued that § 1346 "is vague, amorphous, open-ended, and essentially, not very helpful," and that "all convictions in this case must be reversed." Counsel for the United States responded that petitioners had not previously raised the question of whether the statute is unconstitutionally vague, so the Court should not rule on that issue.

In Weyhrauch v. United States [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether a federal honest services mail fraud prosecution under 18 USC §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that no state law violation is required. The case involves former Alaska state representative Bruce Weyhrauch and whether he should have disclosed that he was seeking legal work from oil company Veco Corp. while he was voting on an oil tax. Counsel for the petitioner argued that § 1346 does not impose a legal duty to disclose a potential conflict of interest. Counsel for the United States argued "that when the legislator takes official action having an undisclosed conflict of interest, that's when he violates the honest services statute under the non-disclosure theory."






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New Jersey Senate committee approves same-sex marriage bill
Jaclyn Belczyk on December 8, 2009 2:53 PM ET

[JURIST] The New Jersey Senate Judiciary Committee voted 7-6 Monday in favor of a bill [text, PDF] that would legalize same-sex marriage [JURIST news archive] in the state. This is the first time that any body in the state legislature [official website] has approved a same-sex marriage bill. The vote came after hours of debate [NYT report] with testimony from supporters and opponents of the legislation. The bill will now move before the full senate for a vote scheduled for Thursday. It is unclear whether there is enough support to approve the legislation. If passed by the full senate, the bill would then go before the state assembly, where it is more likely to pass. Outgoing Governor Jon Corzine (D) has promised to sign the bill [CNN report], but Governor-elect Chris Christie (R), who takes office next month, has vowed to veto it.

Last week, the New York Senate defeated legislation [JURIST report] to allow same-sex marriage. In November, Maine voters vetoed [JURIST report] a same-sex marriage bill passed by that state's legislature. The Maine vote came a year after California voters approved Proposition 8 [JURIST report], an amendment to the state constitution overturning the state's high court ruling [JURIST report] in favor of same-sex marriage. Same-sex marriage is legal in four states in the US - Massachusetts, Connecticut, Iowa, and Vermont - and will be legal in New Hampshire [JURIST reports] starting January 1. New Jersey has recognized same-sex civil unions [JURIST report] since 2006.






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Rights group urges Philippines government to end martial law
Megan McKee on December 8, 2009 2:45 PM ET

[JURIST] Amnesty International (AI) [advocacy website] on Tuesday urged [press release] Philippine authorities to establish a timetable to end the martial law declared in its southern province of Maguindanao and to dismantle paramilitary groups throughout the nation. Philippines President Gloria Macapagal-Arroyo [official website; BBC profile] imposed martial law [JURIST report] and suspended habeas corpus last week in response to instability in the province following a politically motivated attack that left 57 dead last month. The powerful Apmatuan clan, which has dominated the province for the better part of the last decade, was blamed for the massacre, and martial law has allowed government forces to arrest members of the clan without warrants and to force many of their armed supporters to forfeit their weapons. AI has called on the president to revoke or amend the order, stressing that, "[k]ey human rights, including the right to challenge the legality of detention, must not be violated or restricted under any circumstances." Since the institution of martial law, AI has not found any evidence of serious human rights violations, but some 70 arrests have been made without warrants and the heightened military presence has led to the displacement of more than 2,000 residents. The Congress of the Philippines [official website] is set to review [NYT report] the proclamation imposing military law on Wednesday and decide whether to support the move by a majority vote.

On Monday, the National Union of People's Lawyers (NUPL) [advocacy website] and other groups petitioned [JURIST report] the Philippines Supreme Court [official website] to reject the president's proclamation [text, PDF] imposing martial law. The groups claim that Arroyo exceeded her constitutional authority [Philippine Daily Inquirer report] to impose martial law by making the proclamation in the absence of either a rebellion or invasion, the two circumstances in which martial law is allowed under Article VII Section 18 [text] of the Philippine Constitution. The court has called on the government to issue a response to the petitions within five days.






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North Korea defends rights record at UN council review
Jaclyn Belczyk on December 8, 2009 2:02 PM ET

[JURIST] The North Korean delegation to the UN Human Rights Council (UNHRC) [official website] defended North Korea's human rights record Monday while presenting a report [text, PDF] in compliance with the UNHRC's Universal Periodic Review (UPR) [materials] process. Ambassador Ri Tcheul denied allegations of torture and claimed that serious malnutrition [Yonhap report] is no longer an issue in the country. Ri did acknowledge the occurrence of public executions [Daily NK report], but said they are only conducted for serious crimes at the request of the victims' families. Several UNHRC representatives urged the North Korean government to allow aid workers [AFP report] to bring food to its citizens, while others called on Pyongyang to allow access to the UN Special Rapporteur. The UNHRC, which has no binding authority, is expected to release its findings later this week.

In October, UN Special Rapporteur for North Korea Vitit Muntarbhorn [official profile] criticized [JURIST report] the country's "abysmal" and ongoing human rights violations in an independent report submitted to the UN General Assembly. Muntarbhorn, a Thai law professor who was appointed as a UN human rights expert in 2004, has not been allowed to enter North Korea to investigate. He based his report on testimonies of experts in the country and of North Korean emigrants. In March, Muntarbhorn told the UNHRC that he found egregious human rights violations [JURIST report] in North Korea. In October 2008, Muntarbhorn urged [JURIST report] North Korea to improve its treatment of prisoners and unsuccessful defectors, as well as to cooperate in locating kidnapped foreign citizens. In January 2008, Muntarbhorn made similar comments during his visit with a special UN envoy to Japan [JURIST report] to assess the impact of the North Korean rights situation on that country. North Korea has frequently been accused of human trafficking, press repression, and "actively committing crimes against humanity" [JURIST reports].






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Supreme Court dismisses Illinois property seizure case as moot
Jaclyn Belczyk on December 8, 2009 1:03 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] in Alvarez v. Smith [Cornell LII backgrounder; JURIST report] that a challenge to an Illinois statute authorizing forfeiture of personal property used to facilitate drug crimes is moot because the parties resolved underlying disputes as to ownership of the property. The Court vacated the decision of the US Court of Appeals for the Seventh Circuit, which had held [opinion, PDF] that some hearing was due, but had remanded the case to the district court in order to determine the applicable test. Justice Stephen Breyer wrote for the Court:


We granted certiorari in this case to determine whether Illinois law provides a sufficiently speedy opportunity for an individual, whose car or cash police have seized without a warrant, to contest the lawfulness of the seizure. At the time of oral argument, however, we learned that the underlying property disputes have all ended. The State has returned all the cars that it seized, and the individual property owners have either forfeited any relevant cash or have accepted as final the State's return of some of it. We consequently find the case moot, and we therefore vacate the judgment of the Court of Appeals and remand the case to that court with instructions to dismiss.

Justice John Paul Stevens concurred in part and dissented in part. Stevens agreed that the case was moot but would not have vacated the lower court's judgment.

The case arose when six plaintiffs whose property was seized without a warrant brought suit against Cook County, Illinois, arguing that the Illinois statute allowing warrantless property seizure is unconstitutional. The Court originally granted certiorari to decide whether the due process clause of the Fourteenth Amendment [text] requires state and local governments to allow probable cause challenges to property seizures, and if so, what the requirements for those hearings should be.





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Supreme Court rules in railway labor arbitration case
Jaclyn Belczyk on December 8, 2009 12:10 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers [Cornell LII backgrounder; JURIST report] that the requirement that parties submit proof that they have conferred on issues before seeking arbitration under the Railway Labor Act (RLA) [text] is not jurisdictional. Justice Ruth Bader Ginsburg delivered the Court's unanimous opinion, affirming the decision [opinion, PDF] by the US Court of Appeals for the Seventh Circuit to set aside the panel's orders:

We consider in this case five nearly identical decisions of a panel of the NRAB dismissing employee claims "for lack of jurisdiction." In each case, the panel declared that a procedural rule raised by a panel member, unprompted by the parties, was "jurisdictional" in character and therefore commanded threshold dismissal.

The panel's characterization, we hold, was misconceived. Congress authorized the Board to prescribe rules for the presentation and processing of claims, but Congress alone controls the Board's jurisdiction. By presuming authority to declare procedural rules "jurisdictional," the panel failed "to conform, or confine itself, to matters [Congress placed] within the scope of [NRAB] jurisdiction." Because the panel was not "without authority to assume jurisdiction over the [employees'] claim[s]," its dismissals lacked tenable grounding.
The Court declined to rule on the constitutional question of whether the RLA authorizes courts to set aside final arbitration awards for alleged violations of due process by the National Railroad Adjustment Board (NRAB).

Congress enacted the RLA in 1926 out of concern that labor disputes would lead to strikes and shut down railroads. The RLA requires labor and industry "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce..."





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Supreme Court finds state procedural rules 'adequate ground' for barring habeas review
Jaclyn Belczyk on December 8, 2009 10:44 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] in Beard v. Kindler [Cornell LII backgrounder; JURIST report] that a state procedural rule is not automatically "inadequate" to bar federal habeas review under the adequate state ground doctrine. The case arose when the Pennsylvania courts applied the state's fugitive forfeiture rule and concluded that defendant Joseph Kindler waived his right to seek appellate review, dismissing his appeal without reaching the merits of his claims. The Court vacated the decision of the US Court of Appeals for the Third Circuit, which had affirmed [opinion, PDF] the district court's grant of federal habeas relief. Chief Justice John Roberts wrote for the Court:


We hold that a discretionary state procedural rule can serve as an adequate ground to bar federal habeas review. Nothing inherent in such a rule renders it inadequate for purposes of the adequate state ground doctrine. To the contrary, a discretionary rule can be "firmly established" and "regularly followed" — even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.

Justice Samuel Alito took no part in the consideration or decision of the case. Justice Anthony Kennedy filed a concurring opinion, joined by Justice Clarence Thomas.

The adequate state ground doctrine bars federal court jurisdiction in 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.





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Supreme Court rules no immediate right to appeal disclosure orders
Jaclyn Belczyk on December 8, 2009 10:08 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] in Mohawk Industries v. Carpenter [Cornell LII backgrounder; JURIST report] that disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine. The Court affirmed the decision of the US Court of Appeals for the Eleventh Circuit, which ruled [opinion, PDF] that there is no such right to an immediate appeal. Justice Sonia Sotomayor delivered the opinion of the court, writing:


The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

Justice Clarence Thomas filed a concurring opinion. The Court's ruling resolves a circuit split on the issue.

Federal appeals courts have jurisdiction to review "final decisions of the district courts" under Section 1291 of the Judicial Code [text]. Final judgments include prejudmgnet orders that are "collateral to" the merits of an action. Petitioner Mohawk Industries argued that disclosure orders adverse to attorney-client privilege were "collateral to" the merits of the case.





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Legally-binding climate treaty expected in 2010: UN Secretary-General
Sarah Paulsworth on December 8, 2009 9:27 AM ET

[JURIST] A legally-binding treaty on climate change [JURIST new archives] should be ready in 2010, UN Secretary-General Ban-Ki Moon [official website] announced [statement] Monday during the 13th Session [materials] of the General Conference of the UN Industrial Development Organization (UNIDO) [official website]. Ban's comments come as the UN Climate Change Conference (COP15) [official website] is taking place in Copenhagen, Denmark. The 192-nation conference was originally designed to produce a global climate change treaty to replace the Kyoto Protocol [text, PDF; JURIST news archive], which expires in 2012. In his remarks to the 13th Session of the General Conference of the UNIDO, Ban said:


From all corners of the globe, we are seeing unprecedented momentum for governments to act quickly and decisively. Our shared goal is a fair and effective agreement that will reduce emissions while helping vulnerable communities adapt. Copenhagen can and must generate practical results right away while providing a firm foundation for a legally binding climate treaty as early as possible in 2010. Science demands that we act. So does economic common sense.

Ban added that industry is "central to this effort."

Last month, both Ban and US President Barack Obama expressed doubt [JURIST reports] that a climate change treaty could be reached during COP15. Director of the UN secretary-general's Climate Change Support Team Janos Pasztor expressed [press release] a similar view [JURIST report] in October. Negotiations on the new climate change treaty began [JURIST report] last year in Bangkok. In October, a UN official working on preparations for COP15 said US hesitancy to pass a climate bill could doom the conference [JURIST report]. The US never signed the Kyoto Protocol, but in March, the US Special Envoy on Climate Change announced [JURIST report] that the US is committed [video] to the creation of an international treaty designed to combat global warming, but such efforts will only succeed if they are economically feasible.





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Chile judge rules former president's death a homicide, charges 6
Jaclyn Belczyk on December 8, 2009 9:13 AM ET

[JURIST] A Chilean judge ruled [judgment, DOC; in Spanish] Monday that former president Eduardo Frei Montalva was assassinated, charging six in connection with his death. Judge Alejandro Madrid of the Chilean Court of Appeals found that Frei Montalva, who was president of Chile from 1964-1970, had been poisoned [La Nacion report, in Spanish] with mustard gas and other chemicals before his 1982 death. Three men were charged with murder, including a doctor, an intelligence agent, and Frei Montalva's driver. Two other doctors were charged with covering up the murder by allegedly falsifying autopsy reports, and a third was charged as an accomplice. The ruling comes less than week before the presidential election in which Frei Montalva's son, Eduardo Frei, is the candidate of the ruling center-left coalition. Eduardo Frei previously served as president from 1994-2000.

Frei Montalva was a vocal critic of late former Chilean dictator Augusto Pinochet [BBC profile; JURIST news archive] and the policies of his 1973-1990 military regime. An investigation into Frei Montalva's death was initiated in January 2007 when his body was exhumed and traces of mustard gas were found. Pinochet himself was under posthumous investigation [JURIST report] for possibly ordering Frei Montalva's death. Frei Montalva's family had long maintained that his death, which was originally ruled the result of a bacterial infection from treatment of a hernia, was a homicide.






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Groups petition Philippines Supreme Court to reject martial law declaration
Devin Montgomery on December 8, 2009 8:20 AM ET

[JURIST] The National Union of People's Lawyers (NUPL) [advocacy website] and other groups on Monday petitioned the Philippines Supreme Court [official website] to reject a proclamation [text, PDF] by President Gloria Macapagal-Arroyo [official website; BBC profile] imposing martial law [JURIST report] and suspending habeas corpus in the province of Maguindanao. The groups claim that Arroyo exceeded her constitutional authority [Philippine Daily Inquirer report] to impose martial law by making the proclamation in the absence of either a rebellion or invasion, the two circumstances in which martial law is allowed under Article VII Section 18 [text] of the Philippine Constitution. As mandated by the constitution, the Congress of the Philippines [official website] will review [press release] the proclamation on Tuesday and decided whether to support the move by a majority vote.

The proclamation was announced [press release] on Saturday, and is a result of instability in the province following a politically motivated attack that left 57 dead last month. Government authorities on Friday arrested several suspects [BBC report] in connection with the attack, including Maguindanao Governor Andal Ampatuan Sr., and subsequently discovered an "arsenal of weapons" buried nearby. Military officials believed that rebels loyal to the Ampatuan family intended to launch a rebellion. The family is suspected of ordering the November 23 attack [AFP report] against political rival Esmael Mangudadatu, who was traveling with family, aides, and journalists to file as a candidate in an upcoming gubernatorial election.






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Chicago man charged in 2008 Mumbai terror attacks
Jaclyn Belczyk on December 7, 2009 4:07 PM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced [press release] Monday that a Chicago man has been charged in connection with the November 2008 terror attacks in Mumbai, India [BBC backgrounder; JURIST news archive]. US citizen David Coleman Headley, arrested in October for allegedly conspiring to bomb a Danish newspaper, was charged [text, PDF] Monday with six counts of conspiracy to bomb public places in India, to murder and maim persons in India and Denmark, to provide material support to foreign terrorist plots, and to provide material support to terrorist organization Lashkar-e-Taiba (LeT) [CFR backgrounder], and six counts of aiding and abetting the murder of US citizens in India. Headley allegedly traveled several times to Mumbai to take pictures and videos of various targets, several of which were attacked. No date has been set for Headley's arraignment before the US District Court for the Northern District of Illinois [official website]. Also Monday, the DOJ unsealed a complaint [text, PDF] against retired Pakistani major Abdur Rehman Hashim Syed for conspiracy in planning to attack the Danish newspaper and its employees.

The lone surviving suspected gunman from the Mumbai attacks, Mohammad Ajmal Amir Kasab [NDTV profile], is currently on trial in India. Last month, the judge hearing the trial removed Kasab's defense lawyer after finding that the lawyer lied when he denied being informed of the special public prosecutor's intent to examine 340 more witnesses of the attack. Kasab's previous lawyer was also removed [JURIST report] in April for ethical violations after agreeing to represent both the accused and a victim of the attack. The Anti-Terrorism Court of Pakistan has indicted [JURIST report] seven men accused of planning the attacks, charging them under Pakistan's Anti-Terrorism Act [text]. The men, who allegedly belong to LeT, have pleaded not guilty. Pakistan has postponed the trial [JURIST report] of five others allegedly connected with the 2008 attack, which claimed at least 170 lives at ten locations across the city.






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Supreme Court hears arguments on constitutionality of Sarbanes-Oxley Act
Jaclyn Belczyk on December 7, 2009 3:15 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in two cases. In Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether the Sarbanes-Oxley Act of 2002 [text] violates constitutional separation of powers by affording members of the Public Company Accounting Oversight Board (PCAOB) [board website] executive power while removing any presidential authority to control the exercise of such power. The law was passed in 2002 to reform business practices and prevent corporate fraud by overseeing the accounting industry and punishing corrupt auditors. The US Court of Appeals for the District of Columbia held [opinion, PDF; JURIST report] that the Act is constitutional 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. Counsel for the petitioners argued:

The board is unique among Federal regulatory agencies in that the President can neither appoint nor remove its members, nor does he have any ability to designate the chairman or review the work product, so he is stripped of the traditional means of control that he has over the traditional independent agencies.

On the other side of the balancing test, Congress provided no reason for stripping him of these traditional means of control.
Counsel for the respondent, the United States, argued that, "[r]esolution of this case follows from a simple syllogism and it is this: The President has constitutionally sufficient control over the [Securities and Exchange Commission]. The SEC has comprehensive control over the Accounting Board, therefore the President has constitutionally sufficient control over the Accounting Board." Counsel for the PCAOB echoed this point, arguing, "[t]he SEC has pervasive authority over every aspect of the board's operations. Board rules and sanctions have no effect, except as the SEC allows, and can be changed by the SEC at any time."

In Florida v. Powell [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether a suspect must be explicitly advised of his right to counsel during custodial interrogation and whether the failure to provide such advice violates Miranda v. Arizona [opinion text]. The case arose out of Miranda warnings given to a defendant that specified a "right to talk to a lawyer before answering any of our questions" and a "right to use any these rights at any time you want during this interview." The trial court overruled the defense lawyer's objection, holding that the warning was sufficient. The Florida Supreme Court reversed [opinion, PDF], finding the warning to be misleading enough to cause a reasonable person to conclude that he or she could only consult with an attorney before questioning. Counsel for Florida argued:
As Courts have recognized, Miranda warnings protect Fifth Amendment rights and promote voluntary confessions, confessions important to seeking truth, solving crimes, and securing justice. Yet the Florida Supreme Court erred in two ways to suppress a voluntary confession relied upon for Kevin Powell's conviction.

First, the Florida court misapplied the analysis. Rather than evaluating the warning under a reasonably conveyed standard for the right to an attorney, the court strictly parsed the warning, seeking certain words in a certain order.

Second, the court incorrectly found the warning to be misleading. The court ignored the totality of the warning. The court overemphasized the order in which the rights were given, and furthermore, the court applied a hypertechnical analysis of the warning's language.
Counsel for the US argued as amicus curiae in support of the petitioner. Counsel for the respondent, Kevin Powell, argued, "[c]learly Miranda could not have been more specific when it said, an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation."





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EPA rules greenhouse gases threaten public health, environment
Jaclyn Belczyk on December 7, 2009 2:12 PM ET

[JURIST] The US Environmental Protection Agency (EPA) [official website] announced Monday a finding that greenhouse gases threaten [press release] public health and the environment. EPA Administrator Lisa Jackson [official profile] signed two separate findings [materials] Monday: that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution. With these findings, the EPA can now take steps to curb greenhouse gas emissions under the Clean Air Act [text, PDF], which the Supreme Court ruled in 2007 gave the EPA authority [JURIST report] to regulate the emission of greenhouse gases by automobiles. At a press conference Monday, Jackson said [prepared remarks]:

In 2007, the US Supreme Court handed down perhaps the most significant decision ever reached in environmental law. The Court ruled that the Clean Air Act, the landmark 1970 law aimed at protecting our air, is written to include greenhouse gas pollution. That verdict echoed what many scientists, policymakers, and concerned citizens have said for years: there are no more excuses for delay.

Regrettably, there was continued delay. But this administration will not ignore science or the law any longer, nor will we avoid the responsibility we owe to our children and grandchildren. Today, I'm proud to announce that EPA has finalized its endangerment finding on greenhouse gas pollution, and is now authorized and obligated to take reasonable efforts to reduce greenhouse pollutants under the Clean Air Act.
The EPA first announced its proposed finding [JURIST report] in April before undertaking a 60-day public comment period. The new findings will enable the EPA to act without Congressional action on emissions.

Monday's announcement coincides with the opening of the UN Climate Change Conference (COP15) [official website] in Copenhagen, Denmark. US President Barack Obama acknowledged [JURIST report] last month that it is unlikely that conference will produce a legally binding agreement addressing global climate change. The 192-nation conference was originally designed to produce a new global climate change treaty, replacing the controversial 1997 Kyoto Protocol [JURIST news archive], expiring in 2012, which the US did not sign.





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ICTY rejects Karadzic challenge to legitimacy of court
Jaclyn Belczyk on December 7, 2009 1:19 PM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Monday rejected [judgment, PDF] a motion [text, PDF] filed by former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] challenging the legitimacy of the court. Karadzic claimed [JURIST report] that the UN Security Council [official website] overstepped its powers when it created the court in 1993. The tribunal summarily rejected this argument:

Whether the UNSC legally established the Tribunal is an issue that was unambiguously settled in 1995 in the Tadic case, when the Appeals Chamber held that the establishment of the Tribunal fell squarely within the powers of the UNSC under Article 41 of the Charter of the United Nations. On the basis of the reasoning set out in that decision, the Trial Chamber finds that the Accused's argument that the Tribunal was not legally constituted because it was not established through an international treaty is without merit. Indeed, the establishment of an international tribunal through an international treaty, as in the case of the International Criminal Court, is but one of the methods by which to set up such a tribuna1.

The court added, "[t]he Trial Chamber wishes to emphasise to the Accused, yet again, that his efforts and resources are best directed towards preparing for the resumption of his trial rather than to filing challenges out of 'moral duty', which he knows are not going to bear fruit."

Last month, the ICTY denied a motion filed by Karadzic requesting appellate review of the court's decision to assign standby counsel [JURIST reports]. The ICTY began Karadzic's trial in absentia last month after proceedings were temporarily adjourned when Karadzic failed to appear [JURIST reports] in court. Karadzic announced earlier that he planned to boycott [JURIST report] his trial because he had not been given adequate time to prepare a defense. The ICTY has also repeatedly rejected [JURIST report] Karadzic's argument that he should be immune from trial based on an alleged agreement with former UN ambassador Richard Holbrooke. Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes allegedly committed during the 1992-1995 Bosnian genocide [PPU backgrounder]. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report]. His trial is planned to be the tribunal's last.





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Pakistan Supreme Court hears challenge to presidential amnesty order
Devin Montgomery on December 7, 2009 12:30 PM ET

[JURIST] A special 17-member panel [press release, PDF] of the Supreme Court of Pakistan [official website] on Monday began hearing [press release, PDF] a legal challenge to an order [text] that grants President Asif Ali Zardari [official website] and 8,000 other government officials immunity from corruption charges. There has been speculation [Daily Times report] that the case may also address separate constitutional immunity granted to Zardari as head-of-state. Opponents of the National Reconciliation Ordinance claim that it violates Article 25 [text] of Pakistan's constitution, the UN Convention against Corruption [text, PDF], and general principles of justice. It is expected that Zardari will face numerous corruption charges [Telegraph report] if the order is invalidated.

The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007 as part of a power-sharing accord allowing former Pakistani prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges [JURIST report] she had faced. The ordinance also applies to similar charges against politicians who were charged, but not convicted, of corruption between 1988 and 1999.






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Israel rights increasingly granted only conditionally: report
Matt Glenn on December 7, 2009 11:32 AM ET

[JURIST] Many rights in Israel and the Occupied Territories are granted only conditionally according to a report [text, PDF, in Hebrew; press release] released Sunday by the Association for Civil Rights in Israel (ACRI) [advocacy website]. The report found that the state infringes on the fundamental rights of political and religious dissenters as well as those of Arabs and the poor. The report cites arbitrary arrests of those opposed to last winters' Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] and attempts to pass laws requiring citizens to swear loyalty to the state and preventing residents from recognizing Israel's independence day as a day of mourning as evidence of increasing restrictions on freedom of speech. Other evidence of a decline in civil rights included Israel's rejection of independent investigations into Operation Cast Lead, increased reports of racism, housing discrimination and the increasing inability of the poor to afford health care. An English version of the report is expected soon.

Last month, the UN General Assembly [official website] adopted a resolution [JURIST report] giving Israel and Palestine three months to conduct independent investigations into possible war crimes committed during last winter's Gaza conflict. The General Assembly voted 114-18 with 44 abstentions [press release] expressing support for the Goldstone Report [text, PDF], the result of a UN Human Rights Council (UNHRC) [official website] fact-finding mission, which accused both Israeli Defense Forces (IDF) [official website] and Hamas [GlobalSecurity backgrounder] fighters of war crimes during the conflict. Israel criticized the report as biased, questioned the objectivity of the fact-finding, and urged the UN not to adopt the report's findings.






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Supreme Court rules on emergency aid exception to Fourth Amendment
Jaclyn Belczyk on December 7, 2009 11:20 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday summarily reversed and remanded [opinion, PDF] a Michigan Court of Appeals decision that found officers violated a defendant's Fourth Amendment [text] rights when they entered his home. In a per curiam opinion, the Court relied on its 2006 ruling in Brigham City v. Stuart [opinion, PDF] to conclude that the officers correctly applied the emergency aid exception to the Fourth Amendment:


It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But "[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties." It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.

Justice John Paul Stevens filed a dissenting opinion, joined by Justice Sonia Sotomayor.

The case arose when officers were called to the home of Jeremy Fisher. Officers found a dented vehicle outside the home and blood on the vehicle and on clothing inside the vehicle. They observed Fisher through a window throwing objects and one of the officers entered the home, at which time Fisher pointed a rifle at the officer. Fisher was charged with assault and possession of a firearm during a felony and sought to suppress the officer's statement, arguing that the entry was illegal.





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Switzerland liberals call for referendum to reverse minaret ban
Matt Glenn on December 7, 2009 10:13 AM ET

[JURIST] A group of Swiss intellectuals on Sunday called for a reversal of Switzerland's recent vote to ban the construction of minarets [JURIST report]. The Swiss intellectual group Club Helvetique [advocacy website, in German] told a Swiss newspaper that they plan to institute a new referendum [Reuters report] to overturn the ban imposed through a referendum last week. Swiss Supreme Court President Lawrence Meyer also said [NZZ report, in German] Sunday that two suits have been filed in federal court challenging the ban's legality. Meanwhile, Muslim leaders have continued to speak out against the ban. Libyan leader Muamar Gaddafi [official website] warned [SwissInfo report] Sunday that the ban could make Switzerland an enticing target for al Qaeda. Iran's Foreign Minister Manouchehr Mottaki called [IRNA report] Switzerland's Foreign Minister Micheline Calmy-Rey Sunday to express Iran's anger and disappointment with the ban, telling Calmy-Rey that the ban is inconsistent with Switzerland's stated dedication to democracy and human rights.

Last week, UN High Commissioner for Human Rights Navi Pillay [official website] condemned the ban [JURIST report] as a form of religious discrimination. Last year, the Swiss government announced [JURIST report] that Swiss nationalist parties had gathered enough signatures on their initiative against the construction of minarets [initiative website, in French] to force a national referendum on whether the country's constitution should be amended to ban the structures. The initiative was originally sponsored by the anti-immigrant Swiss People's Party (SVP) [party website].






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Supreme Court takes student religious group, sentencing cases
Jaclyn Belczyk on December 7, 2009 10:12 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in two cases. In Christian Legal Society v. Martinez [docket; cert. petition, PDF], the Court will consider whether a state law school may deny recognition to a religious student organization where the group requires its officers and voting members to agree with its core religious beliefs, thereby excluding gay students. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] in favor of the law school.

In Dillon v. United States [docket; cert. petition, PDF], the Court will consider whether the federal sentencing guidelines [materials] are binding when a federal judge imposes a new sentence. Under the Supreme Court's 2005 ruling in United States v. Booker [opinion text], the guidelines are advisory only, but the Court has never ruled on Booker's application to a sentence modification proceeding. The US Court of Appeals for the Third Circuit held [opinion, PDF] that Booker should not apply in sentence modification proceedings, upholding Percy Dillon's modified sentence.






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Iraq lawmakers approve amended election law
Jaclyn Belczyk on December 7, 2009 9:09 AM ET

[JURIST] The Iraqi parliament [official website, in Arabic] on Sunday approved [press release, in Arabic] an amended version of a controversial election law. Iraqi lawmakers had reached an agreement [JURIST report] last month, but amended the legislation in order to avoid a second veto from Sunni Vice President Tareq al-Hashemi [personal website, in Arabic]. Al-Hashemi had vetoed [JURIST report] a previous version of the bill, calling for increased representation for Iraqis living abroad. An estimated 1.5 million Iraqis live outside the country, and many are thought to be Sunnis who fled after Saddam Hussein's Sunni regime fell. Under the new version of the law, the number of seats in parliament will increase [NYT report] from 275 to 325, with 310 of those seats allotted to Iraq's 18 provinces and the remainder reserved for Iraqis living outside the country. Al-Hashemi congratulated [press release] the Iraqi people on the adoption of the new law, calling it a "triumph of the will of Iraqis." The White House called [press release] passage of the new law "a decisive moment for Iraq's democracy." Officials said Monday that elections are likely to be scheduled [Reuters report] for February 27.

The Iraqi Constitution [text, PDF] required general elections to be held by January 31 and required the new election law to be approved unanimously by the three members of the Presidency Council [official website, in Arabic], including al-Hashemi, within 60 days of the election, previously scheduled for January 18 of next year. After al-Hashemi's first veto, the Independent High Election Commission [official website, in Arabic] suspended preparations for the election. It remains unclear whether the delay in elections will affect the planned withdrawal of US military forces from Iraq. The elections may also include a referendum on the US-Iraq Status of Forces Agreement (SOFA) [text, PDF], which allows US troops to remain in the country until the end of 2011. A draft bill requiring the referendum was approved by the Iraqi cabinet [JURIST report] in August. If the SOFA were rejected by Iraqi voters, US troops would have only one year to withdraw, which would be nearly a year ahead of schedule.






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Greek police arrest 150 on eve of shooting anniversary
Daniel Makosky on December 6, 2009 10:43 AM ET

[JURIST] Greek police [official website, in Greek] conducted raids in Athens Saturday in an effort to avoid a repeat of last year’s violent protests as the first anniversary of a controversial police shooting approaches. Over 6,000 officers spread across the city, arresting more than 150 people [Radio Netherlands report] for throwing rocks or vandalism. Students preparing to commemorate the incident gathered in universities [BBC report], and authorities estimate 150 anarchists converged on the country from across Europe. Prime Minister George Papandreou [official website] emphasized the importance of maintaining stability, and said the government had adopted a “zero tolerance policy towards violence.”

A Greek council of judges in June ordered two police officers to stand trial [JURIST report] for the death of 15-year-old Alexis Grigoropoulos that sparked last year's December protests. In March, Amnesty International [advocacy website] said that Greek authorities were not doing enough to ensure that the nation's police respect human rights [JURIST report], and urged the government to investigate and address "long-standing problems of policing." Earlier that month, the Greek government said that it would revamp its police force [JURIST report] in light of the riots. The Greek police have been accused of being both ineffective and unnecessarily violent [JURIST op-ed] in their response to the protests.






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Obama administration favors Illinois prison for Guantanamo detainees
Steve Czajkowski on December 6, 2009 9:46 AM ET

[JURIST] The Obama administration is seeking Illinois congressional support [Washington Post report] for a plan to purchase a prison facility in northwestern Illinois to house terrorism suspects currently being held at Guantanamo Bay [JURIST news archive], the Washington Post reported Sunday. Last week officials from the White House, the Department of Defense (DOD) [official website], and the Federal Bureau of Prisons (BOP) [official website] met [press release, video] with members of the Illinois congressional caucus in the office of Senator Dick Durbin (D-IL) [official website] to raise support for the use of the Thomson Correctional Facility [IDOC backgrounder] as a location for housing detainees. Officials did not entirely rule out choosing another site, but if the Thomson site is chosen it would require funding to bring it up to the appropriate security level and would not be open for several months. Officials also said that they are considering the addition of a courtroom at the site in order to hold military commission [JURIST news archive] hearings.

Both Durbin and Illinois Governor Pat Quinn (D) favor [JURIST report] moving Guantanamo detainees to the northwestern Illinois prison facility. It is estimated that the facility could bring 2,340-3,250 new jobs to the community and provide an estimated $790 million to $1.09 billion economic impact over four years. Not all local leaders support the possible transfer of accused terrorists to Illinois, however. In November, US Representative Mark Kirk (R-IL) [official website] wrote a letter [text] to President Barack Obama, urging him not to transfer detainees to the Thomson Facility because of fears it would lead to terrorist activity in the Chicago area. Even if the prison is chosen as a domestic facility for Guantanamo transferees, in order to hold detainees in US, Congress would have to change a law specifically prohibiting detainee transfers into the US except for trials [JURIST report]. A Michigan state prison has also been suggested as a possible holding facility for ex-Guantanamo detainees, but local residents have protested the possible transfers [JURIST reports].






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Philippines president makes first martial law declaration since 1986 Marcos fall
Daniel Makosky on December 5, 2009 10:40 AM ET

[JURIST] Philippines President Gloria Macapagal-Arroyo [official website; BBC profile] issued Proclamation 1959 [text, PDF] on Friday, imposing martial law and suspending habeas corpus in the province of Maguindanao, the first presidential imposition of martial law in the country since Ferdinand Marcos’ fall in 1986. The move, announced [press release] Saturday, is a result of instability in the province following a politically motivated attack that left 57 dead last month. The martial law proclamation stated that

[T]he condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety.
The country’s constitution [text] allows the declaration of martial law and suspension of habeas corpus for a period of 60 days in the event of a rebellion if necessary to preserve public safety. The latter measure applies only to those connected to the uprising, and individuals must be charged within three days of their arrest. Arroyo is required to submit the order for congressional authorization within 48 hours, after which a simple majority is required for approval.

Government authorities on Friday arrested several suspects [BBC report] in connection with the attack, including Maguindanao Governor Andal Ampatuan Sr., and subsequently discovered an “arsenal of weapons” buried nearby. Military officials believed that rebels loyal to the Ampatuan family intended to launch a rebellion. The family is suspected of ordering the November 23 attack [AFP report] against political rival Esmael Mangudadatu, who was travelling with family, aides and journalists to file as a candidate in an upcoming gubernatorial election.





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Guatemala ex-colonel sentenced to prison for enforced disappearances in civil war
Zach Zagger on December 5, 2009 9:17 AM ET

[JURIST] A retired Guatemalan colonel has been sentenced to 53 years in prison for his role in the disappearance of eight indigenous Guatemalans during the 36-year Guatemalan civil war [GlobalSecurity backgrounder]. A three-judge court Thursday found Col. Marco Antonio Sanchez and three of his subordinates, Jose Domingo Rios, Gabriel Maldonado Alvarez Ramos and Solomon Rivers, guilty of enforced disappearance [Prensa Libre report, in Spanish]. On October 19, 1981, eight people from the village El Jute, in the province of Chiquimula, were seized by soldiers and taken to a military base in Zacapa. They were never heard from again. The convictions are the first [Guatemalan Times report] in Guatemala [JURIST news archive] against high ranking military officials for human rights violations during the civil war. Guatemalan President Alvaro Colom, in a speech to young people, praised the convictions [press release, in Spanish] as a "landmark" decision and said it was evidence the country is changing both socially and politically.

Sanchez's conviction is not the first in Guatemala for enforced disappearance. In September, Guatemalan paramilitary Felipe Cusanero was convicted [JURIST report] and sentenced to 150 years in prison for the enforced disappearance of six indigenous persons during the civil war between the years of 1982 and 1984. Cusanero's trial, which began [JURIST report] in 2008, was the first time a defendant was tried for enforced disappearance in Guatemala. The country's handling of past human rights violations has garnered support from the US. The US State Department (DOS) [official website], praised [JURIST report] Guatemala for its efforts to investigate past human rights abuses in its 2008 Country Reports on Human Rights Practices [DOS materials].






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DOJ civil rights enforcement dropped under Bush administration: report
Jaclyn Belczyk on December 4, 2009 3:08 PM ET

[JURIST] Enforcement of various civil rights laws decreased during the Bush administration, according to a report [text, PDF; summary] released Thursday by the US Government Accountability Office (GAO) [official website]. The GAO studied the activities of the Civil Rights Division of the US Department of Justice (DOJ) [official websites] between 2001 and 2007. According to the report, DOJ lawsuits to enforce laws prohibiting race or sex discrimination in employment fell [NYT report] from about 11 per year under the Clinton administration to about 6 per year under the Bush administration. There was also a drop in the number of cases brought under the Voting Rights Act from more than four cases a year under Clinton to fewer than two cases a year under Bush. The US House of Representatives held a hearing [materials; recorded video] Thursday on oversight of the Civil Rights Division, at which GAO Director of Homeland Security and Justice Issues Eileen Regen Larence recommended [testimony, PDF]:


that to strengthen the Division's ability to manage and report on the four sections' enforcement efforts, the Acting Assistant Attorney General of the Division, among other things, (1) require sections to record data on protected class and subject in the Division's case management system in order to facilitate reporting of this information to Congress, and (2) as the Division considers options to address its case management system needs, determine how sections should be required to record data on the reasons for closing matters in the system in order to be able to systematically assess and take actions to address issues identified.

Assistant Attorney General Thomas Perez [official profile] said [testimony, PDF] that the DOJ is "working to comply fully with the GAO's recommendations."

In September, US Attorney General Eric Holder [official profile] said that the DOJ planned to expand its Civil Rights Division [JURIST report] and more actively enforce anti-discrimination laws. The increased focus on civil rights marks a change in focus from the previous administration, which, according to the New York Times [NYT report; JURIST report], shifted resources from preventing racial discrimination to protecting religious rights. Among the new measures described by Holder were President Barack Obama's plan to add more than 50 lawyers to the Civil Rights Division and increased enforcement of anti-discrimination laws in areas in which minorities are often adversely affected, including housing and employment. At his swearing-in ceremony, Holder pledged [JURIST report] to restore the traditions of fairness and neutrality to the department.





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JURIST named in ABA list of top legal news websites
Jaclyn Belczyk on December 4, 2009 2:56 PM ET

[JURIST] JURIST's Paper Chase legal news service has been named as one of the "100 best Web sites by lawyers, for lawyers" as chosen by the editors of the ABA Journal, the flagship magazine of the American Bar Association. Ranking Paper Chase among their top 12 legal news websites, the ABA Journal Third Annual Blawg 100 applauded JURIST's format of linking readers to primary source documents:


Stories here never lack for sources, always linking to original reports, legal documents and information on the people making news. Check out this site for frequent updates on the courts’ treatment of Guantanamo detainees.

This is the third ABA Blawg 100 nomination for JURIST's Paper Chase in as many years. JURIST readers are encouraged to register with ABAJournal.com and vote for JURIST's Paper Chase as their favorite legal website. Voting will remain open until December 31, and the winners will be announced in February.

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. Established in 2004, Paper Chase is JURIST's flagship service, staffed by 23 law students under the direction of Research Director Jaclyn Belczyk.





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Texas executes death row prisoner despite mental impairment defense
Steve Dotterer on December 4, 2009 11:35 AM ET

[JURIST] The State of Texas executed death row inmate Bobby Wayne Woods [TDCJ profile] by lethal injection Thursday, over the objections of lawyers who argued Woods was mentally impaired and thus could not be executed under federal law. Defense lawyers argued that Woods's IQ fell below 70, a number used generally as a threshold for mental retardation. The Texas Court of Appeals rejected [opinion, PDF] this argument, citing evidence that Woods' IQ was as high as 86. Earlier this week, the Texas Board of Pardons and Paroles [official website] voted against granting Woods clemency. The US Supreme Court [official website] also denied [order, PDF] Woods's lawyers' request [docket] to halt the execution.

Woods was convicted of breaking into his former girlfriend's house in 1997 and sexually assaulting, abducting, and murdering her 11-year-old daughter. Woods was convicted and sentenced to death in 1998. Despite repeated appeals, Woods was unsuccessful in having his sentence permanently stayed. Mentally retarded persons cannot be executed under the US Supreme Court's 2002 ruling in Atkins v. Virginia [opinion]. Texas is one of 37 states that maintains the death penalty [TDCJ backgrounder; JURIST news archive].






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Serbia ICTY cooperation progressing: report
Sarah Paulsworth on December 4, 2009 10:29 AM ET

[JURIST] Serbia is cooperating with the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive], according to a report [text, PDF] presented [statement, PDF] Thursday to the UN Security Council [official website] by Chief War Crimes Prosecutor Serge Brammertz [official profile]. Brammertz noted the need to catch two remaining fugitives, Ratko Mladic [ICTY materials; amended indictment, PDF] and Goran Hadzic [ICTY materials; indictment], but praised Serbia for the progress it has made:


Since the last briefing to the Council, Serbia's cooperation with my Office has continued to progress. Prosecution requests to access documents and archives are being dealt with more expeditiously and effectively. It is important that the authorities continue to provide this level of assistance, which will remain crucial during current and future trial and appeals work.

This progress could put Serbia's bid for EU membership back into motion by unfreezing Serbia's Interim Trade Agreement [text, PDF], said [press release, in Serbian] Serbian President Boris Tadic [official website, in Serbian]. The Netherlands, which had an integral role in the freezing of Serbia's Interim Trade Agreement until full Serbian cooperation with the ICTY was achieved, responded positively to Brammertz's report, with Dutch Minister of Foreign Affairs Maxime Verhagen [official profile, in Dutch] saying [press release, in Dutch], "[t]he reporting of Brammertz is positive. I will next week with my European colleagues discuss what this means for deciding on the integration process of Serbia."

Last year, then-ICTY president Fausto Pocar called for the arrest [JURIST report] of of Mladic and Hadzic, while speaking before the UN General Assembly [official website]. In September 2008, Brammertz told reporters in Serbia that he was "cautiously optimistic" [JURIST report] that Mladic and Hadzic would be brought to justice. International pressure for the capture of the two has increased since the July 2008 arrest [JURIST report] of former Serb leader Radovan Karadzic [ICTY materials; JURIST news archive], currently on trial before the ICTY. In August 2008, Tadic said that his country would fully cooperate with the ICTY [JURIST report] to find and arrest Mladic and Hadzic. Mladic faces charges of genocide and crimes against humanity for overseeing the Srebrenica [JURIST news archive] prison massacre and other killings of Bosnian Muslims and Croats, while Hadzic faces crimes against humanity charges for killings of non-Serbs and for abuses in Croatian prison camps.





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Myanmar high court to consider Suu Kyi appeal
Jaclyn Belczyk on December 4, 2009 9:05 AM ET

[JURIST] Myanmar's Supreme Court has agreed to consider an appeal by opposition pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] against the 18-month extension of her house arrest, officials said Friday. Suu Kyi's lawyers filed the appeal last month after a lower court rejected [JURIST reports] an earlier appeal. A judge will hold a preliminary hearing [NYT report] on December 21 to decide whether the appeal will be considered by the full court. If the judge rejects her appeal at that point, Suu Kyi may request a special leave to appeal, which would be heard by the chief justice.

The extension of Suu Kyi's house arrest stems from an August conviction [JURIST report] for violating state security laws by allowing American John Yettaw to stay in her home after he swam across a lake to get there. Yettaw, who was sentenced to seven years in prison with four years of hard labor, was released [JURIST report] in August after negotiations with US Senator Jim Webb (D-VA). Suu Kyi has spent 14 of the last 20 years in detention, and her latest conviction has been condemned [BBC report] by many world leaders and has given rise to international sanctions [JURIST report] against Myanmar's junta and members of the judiciary.






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Military judge denies admission of new charges against Guantanamo detainee
Ximena Marinero on December 4, 2009 7:33 AM ET

[JURIST] A US military judge ruled [opinion, PDF] Thursday that the US government may partially amend the charges against Guantanamo Bay [JURIST news archive] detainee Ibrahim Ahmed al Qosi [DOD materials] by changing his jurisdictional basis, but may not include four additional years of alleged activities under the charges. In this first application of the Military Commissions Act of 2009 [text, PDF] to pending military trials cases, Air Force Lt. Col. Nancy Paul allowed the government to amend charges [charge sheet, PDF] against al Qosi as an "unprivileged enemy belligerent," in substitution of "unlawful enemy combatant." Paul ruled that the remaining changes pertaining to an additional period between 1992 and 1996 in which al Qosi allegedly managed Osama bin Laden's payroll:


are essentially new and additional offenses and contain substantial matters not fairly included in those previously referred. Additionally, significantly changing the charges and specifications ... brings unfair surprise to the Accused.

In a separate ruling, Paul ordered that a hearing be held on Junuary 6, 2010 for the government to establish personal jurisdiction of the Accused since:

a pretrial finding by the military judge by a preponderance of the evidence that the Accused is an alien unprivileged enemy belligerent does not eliminate the requirement for the Commission members to find beyond reasonable doubt the Accused's status if an element of the offense.

Al Qosi is accused of serving as Bin Laden's bodyguard and driver in Afghanistan, as a supply officer at a Jalalabad compound, and as a member of a mortar crew. In October, military judges granted continuances [JURIST report] for prosecutors in the case against al Qosi, as well as in the case against Noor Uthman Mohammed [DOD materials]. At the time, it was expected that the continuances would make way for a decision on whether to hold the remaining Guantanamo detainee proceedings in civilian or military court. Last month, US Attorney General Eric Holder [official website] announced that five men accused of conspiring to commit the 9/11 terrorist attacks [JURIST news archive] will be tried in civilian courts [JURIST report].





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China court sentences 5 more to death for Xinjiang riot killings
Dwyer Arce on December 3, 2009 2:15 PM ET

[JURIST] Five more people have been sentenced to death by a Chinese court in connection with the July Xinjiang riots [JURIST news archive], state media reported [Xinhua report] Thursday. The sentencing came in connection to the killing of a police officer with a rock and the killing of bystanders during the riots. The Intermediate People's Court of Urumqi sentenced two others to life imprisonment and handed down jail terms for six others. Last month, the Chinese government carried out the executions [JURIST report] of nine others convicted in connection with the riots for murder, assault, arson, and robbery, after a review by the Supreme People's Court [official website, in Chinese] upheld their sentences.

The actions of the Chinese government in the aftermath of the riots have been heavily criticized [JURIST report] by Human Rights Watch (HRW) [advocacy website]. HRW has stated that the trials of the suspected rioters have been marred by infringements on due process and political considerations. Additionally, HRW reported [JURIST report] that more than 40 Uighurs had disappeared while in the custody of Chinese authorities after large scale sweeps by police. Residents of the region claim that the majority of the deaths were at the hands of Chinese authorities, but Chinese state media has reported [Xinhua report] that most of the deaths were due to protesters. The Chinese government has admitted that police were responsible for 12 of the deaths [JURIST report]. The Muslim Uighur population is opposed [BBC backgrounder] to China's restrictive bans on religious practice and says that the recent influx of Han Chinese has disenfranchised non-Chinese-speaking Uighurs. Violence broke out July 5, after Uighurs attacked Han Chinese during protests ignited by an attack at a factory in southern China that left two Uighurs dead.






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Russia judges resign after criticizing lack of judicial independence
Carrie Schimizzi on December 3, 2009 1:00 PM ET

[JURIST] Two justices on Russia's Constitutional Court [official website, in Russian] renounced their positions Wednesday, on the recommendations of their fellow justices, after publicly criticizing the nation's lack of judicial independence. Senior justice Anatoly Kononov, whose term of office was to expire in 2017, will resign [Moscow Times report] from the Constitutional Court at the end of this month. Justice Vladimir Yaroslavtsev will remain on the court, but has stepped down from his position on the country’s Council of Judges. In August, Yaroslavtsev gave an interview [text, in Spanish] to Spanish newspaper El Pais, in which he criticized Russia's judicial system, citing its lack of independence and corruption. Yaroslavtsev claimed the legislative branch is "paralyzed" and called the government "authoritarian." Kononov, who has spoken-out about judiciary problems in the past, publicly defended Yaroslavtsev's comments. In October, both justices were accused of undermining judicial authority by breaching the Judges' Ethics Code and the Law on the Status of Judges.

Russia has long been plagued by criticism over a lack of judicial independence. In June, the Council of Europe (COE) [official website] urged substantial reforms to correct systemic problems [JURIST report] in the Russian legal system, including the lack of judicial independence. Russian President Dmitry Medvedev [official profile] acknowledged the need for judicial reform [JURIST report] last December, saying that transparent courts would restore faith in the justice system and prevent people from seeking redress in the European Court of Human Rights (ECHR) [official website].






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Canada government releases e-mails alleging torture of Afghan detainees
Andrew Morgan on December 3, 2009 12:19 PM ET

[JURIST] The Canadian government on Wednesday released more than 40 redacted e-mails [text, PDF] sent by former diplomat Richard Colvin to then-foreign affairs minister Peter MacKay [official profile] raising concerns about the torture of detainees who were transferred to Afghan prisons by Canadian authorities. The e-mails, which Colvin alleges were sent in violation [Montreal Gazette report] of instructions to avoid written communication, were requested by the House of Commons Special Committee on the Canadian Mission in Afghanistan [official website] in order to corroborate testimony [JURIST report] Colvin gave to the committee last month. Throughout the spring of 2006, Colvin relayed allegations made by the International Committee of the Red Cross [official website] that Afghan authorities were routinely torturing detainees, and that by refusing information requests and failing to provide timely notice of transfer to Afghan custody, the Canadian military was hindering efforts to track Afghan detainees and monitor their treatment. Peter Tinsley, Chair of the Military Police Complaints Commission (MPCC) [official website], also released redacted copies of the e-mails Wednesday at the request of Amnesty International (AI) and the British Columbia Civil Liberties Association (BCCLA) [advocacy websites] after finding that the contents had already been selectively leaked [Toronto Star report] to media organizations.

Last week, former Chief of Defence Staff [official website] Rick Hillier [NSB profile] testified before the committee, rejecting [JURIST reports] Colvin's accusations and saying that, after reviewing the reports, he determined that they reports did not contain any information that would have required Canadian officials to bring them to his attention. AI and BLCCA filed complaints [JURIST report] in 2007 against the Canadian Forces Provost Marshal [official website], alleging complicity in torture by Canadian personnel serving in Afghanistan. AI accused Canada of violating the Charter of Rights and Freedoms [text] by turning Afghan detainees over to Afghan authorities without any protection against later cruel and unusual punishment. In March 2008, the MPCC decided to hold public hearings to investigate the country's detainee transfer process in Afghanistan, despite a move from the Canadian Department of Justice to block the inquiry [JURIST reports]. In September, the Canadian Federal Court ruled [JURIST report] that the MPCC's authority was limited to the investigation of military police, and it did not have the authority "to investigate government policy and to inquire as to the state of knowledge of the Government of Canada at large."






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Honduras congress rejects Zelaya reinstatement
Steve Dotterer on December 3, 2009 11:59 AM ET

[JURIST] The Honduran National Congress [official website, in spanish] on Wednesday voted 111-14 not to reinstate ousted president Manuel Zelaya [BBC profile; JURIST news archive] who was removed by a military coup earlier this year. The vote was held [El Heraldo report, in Spanish] in accordance with the Tegucigalpa/San Jose accord [Honduras News materials], brokered [JURIST report] in October, which gave Congress the power to decide whether to allow Zelaya to serve out the remainder of his term ending January 27. Elections were held [NYT report] Sunday to determine who would succeed interim president Roberto Micheletti [CNN backgrounder], with conservative candidate Profirio Lobo Sosa [BBC profile] winning by a wide margin [La Prensa report, in Spanish]. The US has described [press release] Lobo's election as an important step in normalizing relations between the two countries, but emphasized that additional concerns about the country's political situation need to be addressed. Other members of the Organization of American States (OAS) [official website] have expressed differing opinions on the election results, with the presidents of Colombia, Costa Rica, Panama, and Peru having recognized the election results, and Brazil, Argentina, and Venezuela withholding support.

Last week, the Honduran Supreme Court [official website, in Spanish] issued a non-binding advisory opinion ruling that Zelaya could not legally return to office [JURIST report]. In July, the court refused [JURIST report] a petition by the OAS Secretary General calling for the reinstatement of Zelaya as the country's head of state. Zelaya was ousted [JURIST report] in June, following a judicial order [press release, in Spanish] asserting that he had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform [JURIST report], contrary to a Supreme Court ruling. Zelaya has made several failed attempts to return to office, including attempting to fly into the country accompanied by international leaders.






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Deputy AG Ogden to step down in February 2010
Brian Jackson on December 3, 2009 11:58 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced Thursday that Deputy Attorney General David Ogden [official profile] will resign from his position [press release] to reenter the private sector. Ogden outlined his reasons for leaving, citing his original goal to assist in a smooth transition from the previous administration, and highlighted the changes that have occurred in the DOJ during his eight months as second-in-command. In a statement, Ogden expressed confidence in the DOJ to continue to perform its duties, saying:


we have put in place a terrific senior management team that under the Attorney General's leadership will build on this foundation. Through our work in each of these areas, the goals I hoped to achieve when I accepted this position either have been or soon will be fulfilled. The Department is in good hands, and I feel I can now return to the private practice I have missed these thirteen months.

In order to ensure an efficient transition to the next Deputy Attorney General, Ogden will stay at his position until February 5, 2010.

Ogden had been a key member of the Obama administration transition team at the DOJ prior to his nomination as deputy attorney general [JURIST report]. That nomination was surrounded by some controversy, as conservative groups took issue [JURIST report] with his support for abortion rights, including the amicus brief [text, PDF] he wrote for the American Psychological Association in Planned Parenthood Parenthood of Southeastern Pennsylvania v. Casey [opinion, PDF].





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Canada court hears case against Iran for photojournalist death
Megan McKee on December 3, 2009 10:46 AM ET

[JURIST] The Quebec Superior Court [official website] began hearing arguments [CCIJ press release] Wednesday on the pivotal issue of Canadian torture victims' right to sue foreign governments and foreign officials on Canadian soil. The case was brought by Stephan Hashemi, son of slain Canadian-Iranian photojournalist Zahra Kazemi [CBC profile; JURIST news archive], against the Iranian government and three officials for their role in the 2003 death of his mother in a Tehran prison. Hashemi is seeking moral, physical, and punitive damages for the arrest, torture, sexual abuse, and death of his mother. Citing Canada's State Immunity Act [text], which strictly limits the circumstances under which a foreign government or its officials may be sued in Canada to commercial purposes only, the nation's courts have previously refused [CBC report] to hear civil suits brought against foreign countries. Matt Eisenbrandt, a human rights lawyer and legal coordinator for the Canadian Centre for International Justice (CCIJ) [advocacy website] who is working on the case, maintains that the immunity act violates other Canadian laws such as the Charter of Rights and Freedoms [text] and the Bill of Rights [text]. The CCIJ and the Amnesty International France [advocacy website, in French] have both applied for intervenor status [Toronto Star report].

Kazemi was arrested in June 2003 after photographing a demonstration outside Evin prison in Tehran. The Montreal resident was never formerly charged with a crime, but an examination [JURIST report] demonstrated physical signs of torture, severe beating, head trauma, and rape, which consequently led to her death in July of 2003. Iranian authorities originally stated that her death was accidental and caused by a stroke but later conceded that she was beaten while still maintaining that the death was accidental. In the original suit brought in Iran, the intelligence officer charged with Kazemi's death was acquitted [JURIST report]. On appeal a higher court upheld the acquittal but allowed the murder investigation to be reopened [JURIST report].






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Albania willing to accept more Guantanamo detainees
Christian Ehret on December 3, 2009 9:51 AM ET

[JURIST] Albania is willing to accept [press release] additional Guantanamo Bay [JURIST news archive] detainees, Prime Minister Sali Berisha [official website] told reporters on Wednesday, calling closure of the prison a "human rights issue." Berisha said [Balkan Insight report] that he will not accept Chinese Uighurs [JURIST news archive] due to concerns for preserving positive relations with China:


Naturally, I have said that we can not accept Yughurs, because of already known reasons, I am transparent and open, relations with China are of special importance for Albania. China is a friendly country, and relations with it can not become complicated. In the first case, everything was cleared, and it will not be repeated.

Albania has accepted nine former Guantanamo detainees since 2006, including five Uighurs.

Of the 17 Uighurs were initially detained at Guantanamo Bay after being captured in Afghanistan, seven remain at the facility. Recently, six Uighurs were transferred [JURIST report] to the Republic of Palau [CIA backgrounder]. Four of the Uighurs were transferred to Bermuda [JURIST report] even though Palau President Johnson Toribiong had expressed a willingness to accept [JURIST report] all of the Chinese Muslims held at the detention facility. The Chinese government has repeatedly demanded the repatriation of the Uighurs, maintaining that they are members of 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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House committee approves financial industry regulation bill
Christian Ehret on December 3, 2009 8:54 AM ET

[JURIST] The US House of Representatives Financial Services Committee [official website] on Wednesday approved [press release] the Financial Stability Improvement Act [HR 3996 materials; summary, PDF] to address various economic dangers posed by large financial institutions. The bill seeks to increase regulation and to allow government regulators to control the collapse of large financial firms to lessen any potential economic strains. This would allow for orderly and controlled dissolutions at the expense of only the shareholders and creditors. If passed, the legislation would require companies with assets of more than $50 billion and hedge funds with assets over $10 billion to pay into a "Systemic Dissolution Fund" that would bear the cost of winding down the affairs of failing companies. The creation of such a dissolution fund would shift the burden of future bailouts from taxpayers to the financial services industry itself.

The collapse of complex financial firms has recently spurred government action to increase regulation and oversight. In September, marking the one-year anniversary of the collapse of Lehman Brothers, President Barack Obama stressed the need [JURIST report] for stronger financial industry regulations. Last month, Senate Banking Committee [official website] chair Chris Dodd (D-CT) introduced financial regulatory legislation [JURIST report] designed to limit systemic risk to the country's economy. In April, the House approved [JURIST report] a bill [HR 1664 materials] that allows the Treasury Department to ban certain types of compensation at companies which receive federal bailout money from the Troubled Asset Relief Program (TARP).






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US immigration detention system violates individual rights: reports
Ximena Marinero on December 3, 2009 7:49 AM ET

[JURIST] Current US immigration detention and transfer policies unnecessarily interfere with individual detainees' rights to counsel and procedural fairness, according to two reports released Wednesday urging reforms to the system. According to a report [text, PDF; press release] by the Constitution Project [advocacy website], the government should:

improv[e] access to counsel for immigration detainees and, more generally, for all non-citizens in removal proceedings, including individuals who are not detained. ... Appointed counsel for detainees would benefit both non-citizens and the government. By focusing on the crucial issues in each case, attorneys could make the removal process more efficient and, as a result, less costly. Most importantly, the process would be more just.
A Human Rights Watch (HRW) [advocacy website] report [text; press release] emphasizes that detainee transfers in the immigration system are "doubly troubling because immigration detainees, unlike prisoners, are technically not being punished" and:
erect often insurmountable obstacles to detainees' access to counsel, the merits of their cases notwithstanding. Transfers impede their rights to challenge their detention, lead to unfair midstream changes in the interpretation of laws applied to their cases, and can ultimately lead to wrongful deportations.
The HRW report was based on information analyzed by the Transactional Records Access Clearinghouse (TRAC), a Syracuse University research organization that also released detailed findings [press release] about the US immigration detention system's reliance on transfers to cope with an increase in detainees.

In November, the US Department of Homeland Security (DHS) [official website] announced [JURIST report] that the Obama administration will push for immigration reform [press release] legislation early next year. DHS and Immigration and Customs Enforcement (ICE) [official website] announced [JURIST report] in October a plan for improving immigration detention policies and facilities in response to allegations of poor conditions and abuse. In August, ICE acknowledged that 11 deaths in immigration detention facilities had gone unreported [JURIST report], and directed a review of all detainee deaths to make sure there were no other omissions. Also in the same month, ICE announced plans to implement large-scale changes [JURIST report] to its immigration detention system, including the creation of an Office of Detention Policy and Planning, to ensure that detainees have health care access and are free from persecution.





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Australia Senate rejects carbon pollution reduction bill
Ximena Marinero on December 3, 2009 6:43 AM ET

[JURIST] The Australian Senate [official website] on Wednesday voted against [daily summary, PDF] legislation aimed at reducing carbon pollution. The Senate voted 41-33 [official proceedings] against the Carbon Pollution Reduction Scheme Bill 2009 [No.2] [materials] and ten related bills that would have established a cap-and-trade system. The scheme, similar to the current European system, would have been implemented by July 2011 and aimed to increase emissions reductions from 5 percent to 15 percent by the year 2020. Detractors of the bills alleged that Australian consumers would face higher energy prices and that it would be meaningless for Australia to adopt a cap-and-trade system if the US does not also adopt one. Prime Minister Kevin Rudd [official website], backed by the Labor Party [party website], had intended to present the carbon reduction scheme to the UN Climate Change Conference (COP15) [official website] in Copenhagen, Denmark, next week. Deputy Prime Minister Julia Gillard [official profile] has said that government will not pursue early parliamentary elections under Section 57 of the Australian Constitution [text, PDF] and intends to re-submit the legislation [Reuters report] a third time in February. Australia derives most of its electricity from coal and accounts for 1.5 percent of the world's CO2 emissions, but has the highest emissions per capita [ABC report] among developed nations.

US President Barack Obama acknowledged [press release; JURIST report] in November that it is unlikely that the COP15 will produce a legally binding agreement addressing global climate change. Deputy National Security Adviser for International Economic Affairs Michael Froman said that it is impractical to expect that a final, legally binding agreement could be negotiated in time for the summit. In early November, UN Secretary-General Ban Ki-Moon [official website] attempted [remarks; JURIST report] to temper expectations for the climate change conference, saying that it might not result in a treaty. The meeting of world leaders is an effort to replace the controversial Kyoto Protocol [JURIST news archive] that several nations, including the US, did not sign.






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New York Senate rejects same-sex marriage legislation
Dwyer Arce on December 2, 2009 3:19 PM ET

[JURIST] The New York Senate [official website] rejected legislation [text; materials] Wednesday that would have legalized same-sex marriage [JURIST news archive]. The sponsors of the bill, supported by New York Governor David Paterson [official profile], were unable to marshal the votes required to pass the bill out of the state senate, where the Democratic Party holds a single seat majority. Despite earlier suggestions of the possibility, no Republicans voted in favor of the legislation, resulting in a final vote of 38-24 [NYT report]. Gay rights groups such as the Human Rights Campaign [advocacy website] expressed disappointment [press release] after the vote, while the National Organization for Marriage [advocacy website] welcomed the vote [press release] as a "huge win." Also on Wednesday, a Marist college poll was released [poll results] finding that same-sex marriage is supported by 51 percent of New York's registered voters, and opposed by 42 percent.

Paterson introduced the bill to the state legislature last April, and it passed [JURIST report] in the General Assembly [official website] by a margin of 89-52. The bill was again passed by the lower body in anticipation of the senate vote, as required by state law. Wednesday's vote comes as a blow to advocates for same-sex marriage, who faced another defeat last month when Maine voters vetoed [JURIST report] a same-sex marriage bill passed by that state's legislature. The Maine vote came a year after California voters approved Proposition 8 [JURIST report], an amendment to the state constitution overturning the state's high court ruling [JURIST report] in favor of same-sex marriage. Same-sex marriage is legal in four states in the US, Massachusetts, Connecticut, Iowa, and Vermont, and will be legal in New Hampshire [JURIST reports] starting January 1. New York is currently one of the few US jurisdictions to recognize [JURIST report] same-sex marriages performed in other states.






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ICC orders Congo rebel leader Bemba to remain in custody until trial
Hillary Stemple on December 2, 2009 2:08 PM ET

[JURIST] The International Criminal Court (ICC) [official website] on Wednesday ordered [text, PDF; press release] former Democratic Republic of Congo (DRC) vice-president Jean-Pierre Bemba [ICC materials, JURIST news archive] to remain in custody until his trial next spring. The ruling reverses a decision [JURIST report] issued in August ordering Bemba's conditional release. The order for release was opposed by ICC prosecutors who appealed [JURIST report] the original decision. Bemba remained in custody during the appeals process because the condition of release requiring a country to host him was not met. The ICC appeals judges determined that the original decision to release Bemba was flawed, stating:


the Pre-Trial Chamber misappreciated and disregarded relevant facts in reaching its conclusion that the entirety of factors before it reflected a "substantial change of circumstances" since the issuance of the Decision of 14 April 2009. The Pre-Trial Chamber acknowledged that the grave charges that Mr. Bemba now faces as a result of the Decision of 15 June 2009 makes the risk of him absconding more likely than prior to confirmation. In the view of the Appeals Chamber it was incumbent upon the Pre-Trial Chamber to analyse all the factors based on this heightened risk, in particular, Mr. Bemba's international contacts and ties and his financial situation which the Pre-Trial Chamber did not do.

Bemba's trial date [JURIST report] is set for April 27.

The ICC ordered Bemba to stand trial [JURIST report] in June for war crimes allegedly committed in the Central African Republic (CAR) [BBC backgrounder] from October 2002 to May 2003. Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a warrant for his arrest for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred [JURIST report] to the ICC in July 2008. The proceedings against Bemba were initially postponed, but the pre-trial hearing [JURIST reports] to determine what charges the rebel leader is to face commenced in January. Bemba was elected to the Congolese Senate after losing a run-off presidential election [JURIST report] to Joseph Kabila [BBC profile], who, in December 2006, became the first freely-elected president of the DRC since 1960. After the election, Bemba's private militia force led a violent campaign against government troops until the DRC Supreme Court rejected his election challenge [JURIST report].





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Iran newspaper editor sentenced for role in post-election protests
David Manes on December 2, 2009 1:58 PM ET

[JURIST] Iranian economist and journalist Saeed Laylaz was sentenced to a nine-year jail term on Wednesday for possessing classified information and participating in protests following the contested presidential election in June [JURIST news archive]. Laylaz has been a longstanding critic of Iranian President Mahmoud Ahmadinejad [BBC profile; JURIST news archive], and was an editor for the reform newspaper Sarmayeh [media website, in Persian], which was shut down by the government last month. Shapour Kazemi, the brother-in-law of opposition leader Mir Hossein Mousavi [IranTracker profile], was also sentenced to one year in jail after being charged with participating in the demonstrations. Laylaz and Kazemi have 20 days to appeal their sentences.

Thousands were arrested during the protests following the contested June election, and about 140 have been tried in court to date. Of those tried, 81 have been convicted and sentenced, including former vice president Mohammad Ali Abtahi who was sentenced last month [JURIST report]. The government's response to the protests has been criticized, and human rights groups have called for [JURIST report] the UN General Assembly [official website] to appoint a special envoy to investigate allegations of human rights abuses in Iran since the election. Alleged human rights abuses of detainees include sexual assault, beatings, and forced confessions [JURIST reports]. The government has detained dozens of journalists as well as protesters, and has shut down numerous media outlets. Laylaz was arrested on June 17, according to Reporters Without Borders (RSF) [advocacy website], which monitors the status of detained journalists in Iran [materials].






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Supreme Court hears arguments on Florida beach restoration property rights
Jaclyn Belczyk on December 2, 2009 1:44 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection [oral arguments transcript, PDF; JURIST report] on the constitutional scope of states' authority to modify property boundaries without a judicial hearing. At issue is whether Florida's restoration of storm-eroded beaches by modifying private property boundaries under the Beach and Shore Preservation Act [text] violates due process. The appeal follows a Supreme Court of Florida [official website] ruling [opinion, PDF] that the legislation in question does not unconstitutionally deprive upland owners of their rights to use and enjoy the shore without just compensation, confining its judgment to the context of eroded beaches only. Counsel for the petitioner argued:


The Florida Supreme Court suddenly and dramatically redefined property rights, converting oceanfront property into oceanview property to avoid the finding of a taking. It did so in the context of a beach restoration project which could have been accomplished without taking any private property at all. Given this Court's jurisprudence that a State's legislative and executive branches cannot violate the Fifth Amendment, we see no reason why the judicial branch should be treated any differently.

Counsel for the US argued as amicus curiae on behalf of the respondents that "what has happened here is the State has exercised, not just sovereign regulatory rights; it has exercised critical sovereign proprietary rights."





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Malaysia high court refuses to dismiss sodomy charges against opposition leader
Carrie Schimizzi on December 2, 2009 12:49 PM ET

[JURIST] The Malaysian high court ruled [Bernama report] Tuesday that opposition leader Anwar Ibrahim [BBC profile, JURIST news archive] will stand trial on charges on sodomy early next year. Counsel for Anwar had argued for the case to be thrown out [Star report] since medical reports showed no conclusive proof of penetration, but Justice Mohamad Zabidin concluded that medical reports could not be used as a basis to strike out the charge. Anwar is accused of sodomizing his former aide, Mohd Saiful Bukhari, in 2008. He has pleaded not guilty [JURIST report] and contends that the charge is part of a government conspiracy to undermine his political agenda. The trial date has been set for January 25, 2010, and, if convicted, Anwar faces up to 20 years in prison.

The current sodomy charge is the second against Anwar in the past 11 years. Anwar was Malaysia's deputy prime minister until he was fired in 1998 following sodomy charges of which he was initially convicted but later acquitted. He only recently reentered Malaysian politics following the expiration of a ten-year ban [JURIST report] against him for unrelated corruption charges.






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DC Council gives preliminary approval to same-sex marriage legislation
Dwyer Arce on December 2, 2009 12:00 PM ET

[JURIST] The Council of the District of Columbia [official website] voted Tuesday in favor of a law that would allow same-sex marriages to be performed in Washington, DC. The Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [text, PDF] passed with a vote of 11-2, despite opposition from the Catholic Archdiocese of Washington [organization website], which has pledged to end social services [JURIST report] if the bill becomes law. To become law, first the bill must pass another vote by the Council at least two weeks later, which is tentatively scheduled for December 15 [Washington Post report]. DC Mayor Adrian Fenty [official profile] has promised to sign the bill [AP report], after which the US Congress would have 30 days to veto it under the Home Rule Act [text, PDF]. If Congress fails to act, the bill will then become law at the expiration of that time. Council members Marion Barry and Yvette Alexander [official profiles] cast the dissenting votes. Before casting his vote, Barry stated: "I stand here today to express, in no uncertain terms, my strong commitment to the gay and lesbian, bisexual, transgender community on almost every issue except this one."

Last month, the District of Columbia Board of Election and Ethics [official website] ruled [JURIST report] that the Jury and Marriage Act (JAMA) [text, PDF], which allows DC to recognize same-sex marriages performed legally in other jurisdictions, could not be challenged by a ballot initiative because overturning the law would violate the DC Human Rights Act [text]. In July, JAMA took effect [JURIST report] after congressional inaction. If the marriage bill becomes law, DC will become the sixth US jurisdiction to recognize marriage between same-sex couples, after voters in Maine rejected a similar bill [JURIST report] that had passed the state legislature. Similar legislative initiatives were successful in New Hampshire and Vermont [JURIST reports]. Legislation to the same end was passed [JURIST report] by the New York State Assembly in May, but has since stalled in the state senate. In April, the Iowa Supreme Court overturned that state's ban on same-sex marriage, following the supreme courts of Connecticut, California, and Massachusetts [JURIST reports]. Last November, California voters approved Proposition 8 [JURIST report], amending the California constitution to exclude same-sex couples from marriage and effectively overriding the ruling of the high court.






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Cambodia genocide court appoints new co-prosecutor
Amelia Mathias on December 2, 2009 10:33 AM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] named [press release] a new head co-prosecutor Wednesday after the September resignation [JURIST report] of Canadian Robert Petit. UK lawyer Andrew Cayley, who will serve alongside a Cambodian prosecutor, has previously been in private practice defending alleged war criminal Charles Taylor [JURIST news archive] in The Hague. He also served as Senior Prosecuting Counsel at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] from 2001-2005 where he was responsible for the continuing investigation against Ratko Mladic [JURIST news archive]. Cayley takes over for William Smith of Australia, who had been serving as acting co-prosecutor [JURIST report]. American Nicholas Koumjian has been appointed as reserve co-prosecutor [AP report].

The ECCC, charged with trying those responsible for atrocities committed during the rule of the Khmer Rouge [BBC backgrounder], has been faced with numerous allegations of corruption. On Tuesday, the court rejected a motion for a probe into allegations of judicial bias [JURIST report]. In August Human Rights Watch (HRW) [advocacy website] asked the ECCC to determine the scope of its prosecutions [JURIST report] "to thwart growing perceptions that court decisions are directed by the government." In February, HRW warned that ECCC trials were in danger of being tainted for their failure to follow fair trial standards, and in January a Cambodian court agreed to hear a corruption case [JURIST reports] involving two ECCC judges.






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Ex-Guantanamo detainee lawyers seek dismissal of charges for trial delay
Jaclyn Belczyk on December 2, 2009 9:38 AM ET

[JURIST] Lawyers for former Guantanamo Bay [JURIST news archive] detainee Ahmed Ghailani [GlobalSecurity backgrounder; JURIST news archive] have filed a motion [text, PDF] to dismiss the charges against him, according to heavily redacted court documents made public Tuesday. Ghailani's lawyers argued that his right to a speedy trial was violated after he spent nearly five years in custody before being brought before a civilian court. The lawyers also argued that Ghailani was subjected to cruel interrogation methods at "black sites," or secret prisons operated by the Central Intelligence Agency (CIA) [official website] and was denied access to a lawyer. According to the motion, national security concerns should never "trump a defendant's Constitutional right to a Speedy Trial." A spokesperson for the prosecution declined to comment [NYT report], and prosecutors will be filing a response to the motion.

Ghailani faces charges for his alleged involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya and is the first Guantanamo detainee to be brought to the US for prosecution. Last month, a federal judge ruled [opinion, PDF] that Ghailani does not have a right to be represented by his military defense lawyers [JURIST report] in a civilian court. In July, Ghailani's military lawyers requested access to the CIA "black sites" at which their client was held prior to his transfer to Guantanamo Bay. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the US District Court for the Southern District of New York [official website] in June to face 286 separate counts including involvement in the bombings and conspiring with Osama bin Laden and other members of al Qaeda to kill Americans worldwide. He pleaded not guilty [JURIST report] at his initial appearance.






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UN rights chief condemns Switzerland minaret ban
Amelia Mathias on December 2, 2009 8:59 AM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday condemned [press release] Switzerland's ban on building minarets [JURIST report], a type of tower associated with Islamic mosques. The ban, which was approved Sunday with 57.5 percent of the vote and the majority of Swiss cantons, was put forth by conservative political groups and opposed by churches, the government, and business groups. Pillay said that the ban was religious discrimination:

Some of the politicians who proposed this motion argued that it wasn't targeting Islam or Muslims. Others claimed that banning minarets would improve integration. These are extraordinary claims when the symbol of one religion is targeted. ...

Indeed, a ban on minarets amounts to an undue restriction of the freedom to manifest one's religion and constitutes a clear discrimination against members of the Muslim community in Switzerland.
The ban has angered Muslims around the world, and Turkish Minister for EU Affairs Egemen Bagis [official website] has suggested that Muslims with their money in Swiss bank accounts move it to Turkey [AFP report].

Last year, the Swiss government announced [JURIST report] that Swiss nationalist parties had gathered enough signatures on their initiative against the construction of minarets [initiative website, in French] to force a national referendum on whether the country's constitution should be amended to ban the structures. The initiative was originally sponsored by the anti-immigrant Swiss People's Party (SVP) [party website].





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Supreme Court hears arguments in student loan bankruptcy case
Jaclyn Belczyk on December 1, 2009 3:34 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases. In Milavetz, Gallop & Milavetz v. United States [oral arguments transcript, PDF; JURIST report] and United States v. Milavetz, Gallop, & Milavetz, the Court heard arguments on the scope of a federal law prohibiting certain bankruptcy professionals from advising consumer debtors to incur more debt in contemplation of filing for bankruptcy and whether it violates the First Amendment [text]. The law firm of Milavetz, Gallop & Milavetz [firm website] brought the suit against the US seeking a judgment declaring that certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) [text] are unconstitutional as applied to attorneys. The US Court of Appeals for the Eighth Circuit ruled [opinion, PDF] that, while bankruptcy attorneys meet the definition of a "debt relief agency" in the legislation, the BAPCPA provisions codified in 11 USC § 526(a)(4) [text] are unconstitutional as applied to attorneys. Counsel for Milavetz, Gallop, & Milavetz argued that "[s]ection 526(a)(4) is unconstitutional because it proscribes truthful information about entirely lawful activity, it whipsaws the attorneys who are trying to apply it, it creates an impossible situation for them, and it harms the client." Counsel for the US argued:

A debt relief agency is any person who provides specified services to specified clients for pay. An attorney is a person, a defined term under the Bankruptcy Code, and the Petitioners have affirmatively alleged in their complaint that they provide bankruptcy assistance to assisted persons. We think that is all that is required to determine that they are debt relief agencies under the statute.
In United Student Aid Funds, Inc. v. Espinosa [oral arguments transcript, PDF; JURIST report], the Court heard arguments on the requirements for discharging student loan debt via bankruptcy proceedings. Specifically at issue is whether such a bankruptcy discharge can be obtained without proving "undue hardship" as required by 11 USC § 523 [text] and without commencing an adversarial proceeding as required by bankruptcy court rules. Petitioners appeal a decision [opinion, PDF] from the US Court of Appeals for the Ninth Circuit, which held that student loans can be discharged within a Chapter 13 plan if the creditor receives notice of the plan and fails to object. The appellate-level decision found that creditors in the business of administering student loans are unlikely to be misled by customary bankruptcy procedures and "crafty student debtors," ruling that bankruptcy courts have "no business" interfering in such procedures. Counsel for the petitioner argued that "[a]llowing debtors to discharge their student loan debts by mere declaration opens the door to recategorizing every category of non-dischargeable debt." Counsel for the US argued as amicus curiae on behalf of the petitioner. Counsel for the respondent argued that "it would be very, very upsetting to the bankruptcy jurisdiction, exceedingly upsetting to make a very broad exception to finality."





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ICJ begins advisory proceedings on Kosovo independence
Sarah Miley on December 1, 2009 3:14 PM ET

[JURIST] The International Court of Justice (ICJ) [official website] began oral arguments on Tuesday regarding Serbia's request for an advisory opinion [text, PDF] on Kosovo's declaration of independence [JURIST report] in 2008. The advisory proceedings will include arguments from 29 additional countries, including the five member-states of the UN Security Council [official website], debating whether Kosovo's unilaterally proclaimed secession complied with international law. Serbia argues that UN Resolution 1244 [text, PDF], which ended the war in Kosovo, solidified the country's boundaries, which included the southern region of Kosovo. Kosovo argues that the resolution was not meant to exclude the opportunity for succession. Kosovo told the ICJ court that "Kosovo's independence is irreversible and that will remain the case, not only for the sake of Kosovo, but also for the sake of sustainable regional peace and security." While Serbia is backed by the majority of UN countries, including Russia, Kosovo has the support of the US and most European Union countries. The outcome of these proceedings is nonbinding but will be closely watched by countries with large breakaway regions, such as the Basque region in Spain. Spain, which has refused to recognize Kosovo's independence, will be arguing on behalf of Serbia. The reintegration of Kosovo is an unlikely outcome, but Serbian President Boris Tadic believes that these proceedings create a platform for a discussion on the overlying issue of fragmentation [BBC backgrounder] in the Balkans. In an interview [text] with BBC News, Tadic said:


This isn't about reintegrating Kosovo within Serbia. This isn't about the independence of Kosovo. It is about starting from a blank page to talk with good will to find a sustainable, compromise solution. ... The history of the Balkans is all about fragmentation and partition. ... We've suffered a lot through that. That's why we must find a totally different approach.

Earlier this year, in an effort to further the legitimacy of their independence, Kosovo began operations of its own judicial system. 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. A panel of three judges had been set to preside over a criminal case involving two Serbian defendants. As Serbia and Kosovo's Serbian population have refused to accept Kosovo's independence, the demonstration was intended to bar the EU from holding trial [B92 report] in Kosovo except under UN laws. The trial court was established by European Union Rule of Law Mission in Kosovo (EULEX) [official website], an EU mission designed to guide Kosovo toward independence in accordance with the Rule of Law. Citing security concerns, the court has not yet rescheduled the trial.





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Cambodia genocide court rejects motion for judicial bias probe
Patrice Collins on December 1, 2009 2:12 PM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Tuesday rejected [judgment, PDF] a request by lawyers for a former Khmer Rouge [BBC backgrounder] leader to examine two international judges for bias. Lawyers representing former minister of foreign affairs Ieng Sary [Trial Watch profile] sought a public hearing on the independence of Dutch judge Katinka Lahuis and Australian judge Rowan Downing [official profiles]. In the request [motion, PDF] the lawyers cited a speech given by Cambodian Prime Minister Hun Sen [official profile] accusing foreign judges and prosecutors of receiving orders from their governments to meddle in Cambodian affairs. Sun's speech was made after the two judges supported requests for investigations [JURIST report] into five additional Khmer Rouge suspects. In denying the request of defense lawyers, the court stated:


A charge of partiality must be supported by factual basis. The mere fact that a judge has been subjected to press criticism does not require the judge's disqualification. Although public confidence may be as much shaken by publicized inferences of bias that are false as by those that are true, disqualification applications have typically ignored "rumors, innuendos, and erroneous information published as facts in newspapers and threats or other attempts to intimidate the judge."

Sary's trial will be closely watched, as if follows the prosecution of Kaing Guek Eav [Trial Watch profile; JURIST news archive], also known as "Duch," who is first Khmer Rouge official tried before the ECCC. Sary is the second of eight [JURIST report] ex-Khmer Rouge officials expected to be tried before the ECCC, which recently announced the establishment of an independent counselor to oversee anti-corruption efforts [JURIST reports]. In August Human Rights Watch (HRW) [advocacy website] asked the ECCC to determine the scope of its prosecutions [JURIST report] "to thwart growing perceptions that court decisions are directed by the government." In February, HRW warned that ECCC trials were in danger of being tainted for their failure to follow fair trial standards, and in January a Cambodian court agreed to hear a corruption case [JURIST reports] involving two ECCC judges.





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Lisbon treaty on European Union reform enters into force
Sarah Paulsworth on December 1, 2009 1:06 PM ET

[JURIST] The European Union (EU) reform treaty, known as the Treaty of Lisbon [EU materials; JURIST news archive] went into effect [press release] Tuesday after more than two years of negotiations. The Treaty, which was ratified by all 27 member-states of the EU, was crafted to make the EU more democratic, transparent, and efficient, to more effectively promote and protect the values of the Union through promulgation of the Charter of Fundamental Rights [text, PDF], and to increase the EU's role as a global actor. Within the framework of the Treaty, Herman Van Rompuy [BBC profile] will officially take office as the EU's first president in January. President of the European Commission Jose Manuel Barroso [official profile] said, "[t]he Treaty of Lisbon puts citizens at the centre of the European project. I'm delighted that we now have the right institutions to act and a period of stability, so that we can focus all our energy on delivering what matters to our citizens."

Efforts to ratify the treaty in all 27 EU member states, as required for approval, had faced opposition. The Czech Republic was the last country to ratify [JURIST report] the Treaty, approving the document last month after being granted a opt-out clause. Poland and Ireland [JURIST reports] approved the treaty in October, but only after certain guarantees were made by the EU. Germany ratified [JURIST report] the treaty in September.






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Spain judge orders Pinochet associates to post bond in money laundering inquiry
Ann Riley on December 1, 2009 12:07 PM ET

[JURIST] Spanish National Court Judge Baltasar Garzon [BBC profile; JURIST news archive] on Monday opened an embezzlement investigation against four associates of former Chilean dictator Augusto Pinochet [BBC profile, JURIST news archive]. Garzon accused Pinochet's widow Lucia Hiriart his former lawyer Oscar Custodio Aitken Lavanchy and bankers Pablo Granifo Lavin and Hernan Donoso Lira of laundering money for Pinochet while he was in power. Garzon has given the defendants 10 days to post a $77 million bond. If not paid, the amount of the bond and an additional $25 million in assets will be frozen. Garzon intends to use the money to compensate the Spanish victims [El Pais report, in Spanish] of Pinochet's dictatorship.

In September, a Chilean judge disclosed a report [JURIST report] on the extent and sources of Pinochet’s secret fortune, amounting to $25,978,602 in accounts held outside of Chile, of which $20,199,753 is suspected to have been embezzled from official funds. Pinochet's youngest son, former secretary, and estate executor have previously been indicted [JURIST report] for maliciously making false or incomplete tax declarations. In October 2007, 23 family members and former associates, including Hiriart, Pinochet's five children, former secretary, and three retired army generals, were indicted [JURIST report] on corruption charges for aiding Pinochet in the "misuse of fiscal funds" during his regime. The following month, the Supreme Court of Chile upheld an appeals court decision to drop the charges [JURIST reports] because the accused were not government employees at the time and thus could not be charged with embezzling government funds.






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Argentina Supreme Court to review same-sex marriage ban
Andrea Bottorff on December 1, 2009 11:01 AM ET

[JURIST] The Argentine Supreme Court [official website, in Spanish] on Tuesday announced that it would rule on the constitutionality of two articles of the Civil Code [text, in Spanish] prohibiting same-sex marriage [JURIST news archives]. The announcement [AFP report] comes one day after National Court Judge Marta Gomez Alsina issued an injunction [text, PDF, in Spanish] halting the country's first legal gay marriage, set for Tuesday in the capital city of Buenos Aires. Jose Maria Di Bello and his partner, Alex Freyre, had been granted permission [court order text, in Spanish] to wed last month when a Buenos Aires judge declared [La Nacion report, in Spanish] articles 172 and 188 of the Civil Code, limiting marriage to one man and one woman, to be contrary to the Argentine Constitution [text, PDF]. Buenos Aires Mayor Mauricio Macri [BBC profile] said shortly thereafter that he would not appeal [press release, in Spanish; JURIST report] the city court's ruling.

Argentina's Parliament [official website, in Spanish] is currently debating [El Mundo report, in Spanish] two proposals that would modify the nation's definition of marriage for the first time, with 50,000 marching in support of legalization [JURIST report] last month. Buenos Aires became the first Latin American city to legalize same-sex unions in 2002, and was later followed by four other Argentine cities. Uruguay, which remains the only Latin American country that has nationally legalized same-sex unions, expanded the rights given to same-sex couples by passing a law earlier this year allowing same-sex couples to adopt [JURIST report]. Canada [JURIST report] is the only American nation to have legalized same-sex marriage, while Spain [JURIST report] is the only nation in the Spanish-speaking world to have done the same. Both nations legalized gay marriage in 2005.






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Ex-US soldier appeals civilian trial in Mahmudiya rape-murder case
Zach Zagger on December 1, 2009 10:03 AM ET

[JURIST] Former US soldier Steven Green [JURIST news archive] on Monday challenged the law used to convict him in civilian court for his role in the rape and murder of a 14-year-old Iraqi girl [JURIST news archive] and the murder of her family in Mahmudiya. Green filed an appeal [brief, PDF] in the US Court of Appeals for the Sixth Circuit [official website] seeking to overturn the Military Extraterritorial Jurisdiction Act (MEJA) [text], which gives the US federal courts jurisdiction over cases involving crimes committed overseas by people serving in the US armed forces. He is arguing that he should not have been tried in civilian court but rather a military trial. Green is also challenging the validity of his discharge from the military, which enabled him to be tried in civilian court under MEJA.

Green was sentenced to five consecutive life terms in September after a jury failed to reach a unanimous decision [JURIST reports] on whether Green should face the death penalty. At the beginning of the trial, a federal judge rejected [JURIST report] Green's constitutional challenges to civilian charges. His lawyers argued that Green should have been tried in the military justice system rather than charged under MEJA. Green was honorably discharged [JURIST report] from the military for a psychiatric disorder prior to the Army learning of the Mahmudiya incident. He was one of six soldiers [JURIST report] charged with involvement in the rape and murders. Three other soldiers pleaded guilty in court-martial proceedings and a fourth was convicted. Prosecutors dropped charges of dereliction of duty against the sixth member who was other than honorably discharged.






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Karadzic files motion challenging legitimacy of war crimes court
Haley Wojdowski on December 1, 2009 9:34 AM ET

[JURIST] Former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] has filed a motion [text, PDF] made public Monday, challenging the legitimacy of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Karadzic claims that the UN Security Council [official website] overstepped its powers when it created the court in 1993:


All over the world, the establishment of regular courts is only partially a constitutional and mostly a legislative matter, never in the power of the political executive or administrative bodies. Since the international legal order still lacks a legislative body, legislative work is done by the States themselves through what are known as legislative treaties. According to the Charter of the United Nations, the Security Council is not a legislative but a political-executive organ, and its task is not to adopt general enactments but to take appropriate measures whenever there is a given, and therefore individual, threat or danger to peace or act of aggression. However, if this authority were to be interpreted as being unlimited (carte blanche) in terms of arresting suspects, conducting investigations, issuing indictments, trying cases and enforcing prison sentences, which represent police, judicial and administrative powers, this would be an impermissible exceeding of the explicitly established powers of the Security Council.

The ICTY has previously ruled [judgment text] that the Security Council acted within its authority when it established the tribunal. Kardzic concluded that, "[r]egardless of what the decision of the Trial Chamber may be in response to this motion," he "believes it his moral duty in the light of history and before the general public, to challenge the legal validity and legitimacy of this court."

Last week the ICTY denied a motion filed by Karadzic requesting appellate review of the court's decision to assign standby counsel [JURIST reports]. The ICTY began Karadzic's trial in absentia last month after proceedings were temporarily adjourned when Karadzic failed to appear [JURIST reports] in court. Karadzic announced earlier that he planned to boycott [JURIST report] his trial because he had not been given adequate time to prepare a defense. He faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes allegedly committed during the 1992-1995 Bosnian genocide [PPU backgrounder]. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report]. His trial is planned to be the Tribunal's last.





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Four Guantanamo detainees transferred to Europe, two to stand trial in Italy
Brian Jackson on December 1, 2009 8:43 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced Monday and Tuesday the transfer of four detainees from Guantanamo Bay [JURIST news archive] to three European countries, as the detainee population at the detention facility continues to be reduced. Two of the former detainees, Tunisian natives Adel Ben Mabrouk and Mohamed Riadh Ben Nasri, were transferred to Italy [press release] and will stand trial there. The other detainees include an unidentified Palestinian man transferred to Hungary [press release], the first to be accepted [MTI report] under the agreement forged between the US and Hungary [JURIST report] in September, and an Algerian, Saber Lahmar, who was transferred to France [press release]. It is unclear when the Italian trial will begin, though Italian authorities may be waiting for transfer of a third Tunisian man [Corriere della Sera report, in Italian].

While the administration works to reduce the population at Guantanamo in advance of its closure, the likelihood of meeting a January 2010 deadline has recently appeared less and less likely. In early November, the Center for American Progress released a report [JURIST report] that indicated much of the delay in closing Guantanamo was due to failings at the White House. In October, Attorney General Eric Holder indicated that it was unlikely that the facility would be closed by January, a sentiment that mirrored statements by anonymous administration officials in September [JURIST reports]. Obama originally issued the executive order to close Guantanamo [JURIST report] within a year on January 22, two days after taking office.






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Supreme Court reverses death sentence in post-traumatic stress disorder case
Steve Czajkowski on December 1, 2009 7:58 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday reversed [opinion, PDF] a decision by the US Court of Appeals for the Eleventh Circuit [official website] that had affirmed a death sentence for a veteran convicted of murder who suffered from post-traumatic stress disorder (PTSD) [NIMH backgrounder]. In Porter v. McCollum [docket], George Porter, a decorated Korean War veteran, had argued that he had been improperly sentenced to die because his counsel failed to present evidence of factors that would mitigate such a sentence in violation of his Sixth Amendment [text] right to counsel. Following a district court ruling that Porter's counsel was ineffective, the court of appeals reversed, holding that the district court did not give proper deference to the state court that issued Porter's sentence. In an unsigned per curiam opinion, the Court reversed the Eleventh Circuit's decision, holding that Porter's representation was deficient and that the deficiency had prejudiced Porter:

It is unquestioned that under the prevailing professional norms at the time of Porter's trial, counsel had an "obligation to conduct a thorough investigation of the defendant's background." The investigation conducted by Porter's counsel clearly did not satisfy those norms. ... The decision not to investigate did not reflect reasonable professional judgment.

We do not require a defendant to show "that counsel's deficient conduct more likely than not altered the outcome" of his penalty proceeding, but rather that he establish "a probability sufficient to undermine confidence in that outcome." This Porter has done.
The Court emphasized that Porter's military service could have provided evidence of a mitigating circumstance: "the relevance of Porter's extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter."

Porter was convicted in Florida of murdering his ex-girlfriend and her boyfriend in 1988. After pleading guilty and receiving the death penalty, Porter directly appealed the sentence to the Flordia Supreme Court [official website] in 1990, but the ruling was affirmed. In 1995, Porter filed a petition for post-conviction relief in state court based on the position that his counsel failed to properly investigate and present mitigating evidence during the sentencing phase of his trial. During that hearing Porter was able to present evidence of child abuse, substance abuse problems, mental health issues, and his military service and the trauma he suffered during that time.





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Federal appeals court rules dredging contractors immune in Katrina suit
Matt Glenn on December 1, 2009 6:44 AM ET

[JURIST] The US Court of Appeals for the Fifth Circuit [official website] has ruled [opinion, PDF] that several contractors responsible for dredging the Mississippi River, which some claim exacerbated damage from Hurricane Katrina [JURIST news archive], cannot be held liable since the contractors were acting under Congress' express authorization. The plaintiffs' suit claimed that dredging in the Mississippi River Gulf Outlet (MRGO) [USACE backgrounder] compromised the effectiveness of levees and increased Katrina's storm surge. Relying primarily upon the US Supreme Court's decision in Yearsley v. W.A. Ross Construction [opinion text], the court held last Wednesday that government-contractor immunity protected the contractors because the plaintiffs did not allege that the companies acted outside of the authority given them by the federal government or that the government granted that authority improperly. The appeals court also affirmed a lower court's refusal to grant the plaintiffs' request for discovery to see if the contractors acted outside of their contracts with the government. The plaintiffs will not be allowed to amend their complaint, as the court ruled any claim based on the facts would be futile.

Earlier this month, a judge in the US District Court for the Eastern District of Louisiana [official website] found the US Army Core of Engineers (USACE) [official website] negligent [opinion, PDF; JURIST report] in its construction and operation of the MRGO. The USACE had sought dismissal of the suit on several occasions. In March, a judge found [JURIST report] that material questions of fact existed as to a potential violation of the USACE's mandate that, if proven, would preclude it from protection under the discretionary function exception of the Federal Tort Claims Act. The court previously allowed the lawsuit to proceed in May 2008, when he ruled [JURIST report] that the outlet was a shipping channel and not a flood control outlet in connection with which the USACE would have been properly immune in tort, and rejected the USACE's argument that the MRGO was nonetheless part of a larger flood control system in the New Orleans area. The court made a similar ruling [JURIST report] in February 2007 in the context of an earlier motion to dismiss. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [Washington Post report].






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