[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.

[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.

[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."

[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.

[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.

[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.

[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.

[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.

[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.

[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.

[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].