[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in two cases. In United States v. Comstock [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether Congress had the authority to enact certain provisions of the Adam Walsh Child Protection and Safety Act [18 USC § 4248 text], which allow a person deemed "sexually dangerous" to be civilly committed after the expiration of a federal criminal sentence. The US Court of Appeals for the Fourth Circuit found [opinion, PDF; JURIST report] that the law was beyond Congress' authority under the Commerce Clause [Cornell LII backgrounder]. US Solicitor General Elena Kagan [official profile] defended the law, arguing:

What Congress said here was something pretty simple and very reasonable. It said if we, the Federal Government, have somebody in our custody, and we know that that person has the kind of mental illness that is going to cause grave danger to the community; and we know that there is no one else who is in a good position to prevent it; and we know that we were in part responsible for that vacuum, then we should be able to do something about it. That's what section 4248 says, and section 4248 is constitutional for that reason.

The Hague Convention exists to ensure that custody disputes are resolved by the courts of the country of habitual residence rather than through abduction. It thus generally requires the return of a child who is abducted in violation of a right of custody. So too, a ne exeat right permits a parent to require that the child reside in the country of habitual residence, thereby rendering international abduction illegal.

Ne exeat rights are not only rights of custody under the text of the convention, but they also track the convention's vital purpose of ensuring that children are not subject to international abduction.

[JURIST] The 2003 US-British invasion of Iraq was a violation of international law and was not supported by UN resolutions, according to a report [text, PDF, in Dutch; press release, PDF] released Tuesday by a Dutch parliamentary inquiry. The Dutch Parliament began an investigation into the Iraq War in March by establishing the Committee of Inquiry on Iraq [official website], chaired by former president of the Supreme Court of Netherlands WJM Davids [official profile]. According to the report, during the build-up to the war, newly-elected Prime Minister Jan-Peter Balkenende, being more concerned with domestic issues, played little or no role in the debates over the legitimacy of the Iraq invasion and left most of these decisions to then-minister of foreign affairs Jaap de Hoop Scheffer [official profiles]. The committee found that the wording of UN Security Council Resolution 1441 [text], offering Iraq a final opportunity for disarmament, "cannot reasonably be interpreted as authorizing individual member states to use military force to compel Iraq to comply with the Security Council's resolutions," and therefore did not constitute a mandate for the invasion. According to the committee, the government was too concerned with its alliance with the US and Britain and gave insufficient importance to information provided by intelligence agencies and weapons inspection reports, which gave little or no evidence of weapons of mass destruction. Balkenende has rejected [RNW report] the report's criticism.

Former UK prime minister Tony Blair [official profile; JURIST news archive] is also facing criticism over the legality of the Iraq War. According to a letter leaked to the British Iraq Inquiry [official website; BBC backgrounder], confirmed by the Daily Mail in November, former UK attorney general Peter Goldsmith [BBC profile] warned [JURIST report] Blair that the planned invasion of Iraq could be illegal. The July 2002 letter laid out the reasons that Goldsmith believed the Iraq invasion might be illegal, including that an invasion could not be based on "regime change" alone. The existence of this letter will increase the difficulty for Blair to use a good-faith defense against charges that he knowingly led the country into an illegal invasion. He and Goldsmith are likely to be witnesses for the inquiry in the near future.

[JURIST] A UK court on Tuesday began the first non-jury criminal trial in England or Wales in more than 400 years. Defendants John Twomey, Peter Blake, Barry Hibberd, and Glen Cameron appeared at the Royal Courts of Justice, accused of armed robbery of £1.75m from the Menzies World Cargo Warehouse at Heathrow Airport in 2004. The decision [JURIST report] to conduct the trial without a jury was made in June by Lord Chief Justice Igor Judge. The ruling was the first application of a Criminal Justice Act 2003 [text] provision, which allows a court to hold a judge-only trial if there is "evidence of a real and present danger" that jury tampering may take place and it is determined that other measures to prevent tampering would be ineffective. Explaining his decision, Judge cited concerns about the expense of maintaining security for jurors and noted there have already been three aborted attempts to conduct this trial.

Some civil liberties groups have expressed concern [BBC report] that conducting a trial without a jury undermines a fundamental principle of justice. Analysts question if one judge can be as objective as 12 jurors, and also wonder if this move casts doubt on the court system's ability to provide security for jurors in general. The law allowing for judge-only trials in both cases of jury tampering and fraud was passed [Guardian backgrounder] in 2003 and came into effect in 2007. It had earlier been rejected [JURIST report] by the House of Lords before undergoing revisions.

[JURIST] Lawyers for former Guantanamo Bay [JURIST news archive] detainee Ahmed Ghailani [GlobalSecurity profile; JURIST news archive] argued Monday that the charges against their client should be dismissed. Ghailani's lawyers argued before Judge Louis Kaplan of the US District Court for the Southern District of New York (SDNY) [official website] that he was denied the right to a speedy trial while being detained for nearly five years in Central Intelligence Agency (CIA) [official website] secret prisons and later at Guantanamo Bay. The prosecution countered that the delay was reasonable, as Ghailani was held as an intelligence asset, and his interrogation did not violate his constitutional right to a speedy trial. According to the defense's November motion [text, PDF; JURIST report], national security concerns should never "trump a defendant's Constitutional right to a Speedy Trial." The prosecution argued in its December response [text] that, "[t]he Government had unusual but highly compelling reasons for its treatment of the defendant, which had the effect of delaying his case. ... It is a case where the Government reasonably sought to defend the country from a profound and novel threat."

Ghailani faces charges for his alleged involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya, which killed 224 people. In November, 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 [JURIST report] to the CIA "black sites" at which their client was held prior to his transfer to Guantanamo Bay and was allegedly subjected to cruel interrogation methods. Ghailani was the first Guantanamo detainee to be brought to the US for prosecution. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the SDNY 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.

[JURIST] A Taiwanese court said Monday that former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] will be tried Friday in closed-door proceedings. The High Court said that proceedings, set for 9:30 AM Friday, would be closed to the media [Xinhua report] under secrecy regulations. Chen was indicted [JURIST report] in September on corruption charges relating to funds he received while traveling abroad as president. He is accused of embezzling USD $330,000. Chen has maintained his innocence, claiming 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.

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. Last month, Chen, along with his wife and 20 other family members and prominent business leaders, was indicted [JURIST report] on additional charges of corruption and money laundering in relation to Chen's financial reform program. Chen and his wife are accused of taking bribes from banks and financial institutions that sought to protect themselves during the reform.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Smith v. Spisak [Cornell LII backgrounder; JURIST report] that the US Court of Appeals for the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act (AEDPA) [text, PDF] by extending Mills v. Maryland [opinion text] to resolve in a habeas petitioner's favor questions that were not decided or addressed in Mills. The Sixth Circuit ruled [opinion, PDF] that the jury instructions in defendant John Spisak, Jr's trial violated Mills by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors. In reversing the decision below, Justice Stephen Breyer wrote:

The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, "require[d]" juror "unanimity as to the presence of a mitigating factor" - contrary to this Court's holding in Mills v. Maryland. Since the parties do not dispute that the Ohio courts "adjudicated" this claim, i.e., they considered and rejected it "on the merits," the law permits a federal court to reach a contrary decision only if the state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Unlike the Court of Appeals, we conclude that Spisak's claim does not satisfy this standard.

[JURIST] A member of the "Toronto 18" [Toronto Star backgrounder; JURIST news archive] pleaded not guilty in a Canadian court on Monday for his alleged role in a failed 2006 terrorist plot to bomb the Toronto Stock Exchange and government buildings. Shareef Abdelhaleem, the first adult of the group to be tried, allegedly planned to profit from the attacks [Toronto Star report] by investing in and selling particular stock before the bombings. A key witness in the case, Shaher Elsoheny, left a Royal Canadian Mounted Police (RCMP) [official website] witness protection program to testify against his old classmate, Abdelhaleem. Elsoheny worked as a police informant and provided intelligence [National Post report] against Abdelhaleem and others that eventually led to the arrests. Abdelhaleem's lawyer argued that his client was entrapped by Elsoheny, who was allegedly paid millions of dollars [Globe and Mail report] by the RCMP for his assistance in the investigation.

The accused leader of the terrorist group, Zakaria Amara, pleaded guilty [JURIST report] in October to charges of planning to bomb three targets in Ontario. The same month, another member of the group, Ali Mohamed Dirie, was sentenced to seven years in prison [JURIST report] for his part in the plot, while another, Saad Gaya, pleaded guilty. In September, the first of the group to plead guilty, Saad Khalid, was sentenced to 14 years in prison [JURIST report], though the Canadian government is seeking to alter that sentence for time already served. The first of the suspects to be convicted under Canada's post-9/11 terrorism law was sentenced and released [JURIST reports] in May, with the court citing time served. The "Toronto 18," arrested [JURIST report] in 2006, are accused of planning a series of violent attacks on civilians, public officials, and government buildings.

[JURIST] The New Jersey Legislature [official website] on Monday approved a bill [text, PDF] that would legalize medical marijuana [JURIST news archive]. The legislation would allow doctors to prescribe marijuana [NYT report] to patients with chronic illnesses such as cancer, AIDS, Lou Gehrig's disease, muscular dystrophy, and multiple sclerosis, which would be distributed through state-monitored dispensaries. Nonetheless, the measure is among the nation's stricter [NPR report] medical marijuana laws, as it limits use to patients with specific types of severe chronic illnesses and forbids patients to grown their own marijuana or to use it in public. Despite some controversy, the bill passed easily in both houses, with a vote of 48-14 in the General Assembly and 25-13 in the State Senate. Democratic Governor Jon Corzine [official website] is set to sign the bill before leaving office next Tuesday, and it is expected to take effect within nine months.

This legislation would make New Jersey the fourteenth US state to legalize medical marijuana. In November, voters in Maine approved [JURIST report] an expansion [proposed legislation, PDF] of the state's existing medical marijuana laws, making Maine became the fifth state to allow dispensaries [ABC News report], following California, Colorado, Rhode Island, and New Mexico. In October, US Attorney General Eric Holder issued guidelines for a new policy [JURIST report] for investigating and prosecuting state-sanctioned medical marijuana use. Those guidelines reflect a pledge made by Holder in March to stop federal raids [JURIST report] on medical marijuana dispensaries that comply with state laws. Ending such raids was one of President Barack Obama's campaign promises [Boston Globe report], a view that differed sharply from the policy of the Bush administration.

[JURIST] A US military judge ruled Monday that the trials for two Navy SEALs [official website] accused in the alleged assault of an Iraqi prisoner will be held on a US military base in Iraq in order for the alleged victim to be questioned in court. Petty Officer 2nd Class Jonathan Keefe and Petty Officer 1st Class Julio Huertas are accused of assisting in a cover-up of the alleged assault of Ahmed Hashim Abed after his capture in September. A third SEAL, Petty Officer 2nd Class Matthew McCabe, is accused of assaulting Abed after his capture as well as assisting in the cover-up of the assault. Abed is suspected of organizing the 2004 ambush and killing of four US contractors in Fallujah [BBC report]. A hearing has tentatively been scheduled [CP report] for Wednesday to determine if McCabe's trial should also be moved to Iraq. Keene and Huertas will face trial in April, while a trial date has not yet been set for McCabe. All three men have pleaded not guilty to the charges.

Detainee abuse has been a major issue during the occupation of Iraq. In September 2008, the UK Defense Ministry admitted that soldiers unlawfully abused [JURIST report] detainees. In August of that year, six US sailors were charged [JURIST report] with allegedly abusing detainees at the Camp Bucca [backgrounder] prison facility in Southern Iraq. Abuse of detainees during the Iraq War [JURIST news archive] first garnered international attention after the 2004 release of pictures depicting prisoner abuse at Abu Ghraib prison [CBC backgrounder; JURIST news archive] in Iraq.

[JURIST] The Chief Justice of India KG Balakrishnan [official profile] proposed on Saturday the creation of a new constitutional court to review matters relating to the Indian Constitution [text] and other federal issues. Balakrishnan also suggested [The Hindu report] the creation of a television channel that would exclusively cover the Supreme Court of India [official website; JURIST news archive], similar to the channel that currently covers the Indian Parliament. The channel would provide the people with a better understanding of what judges do and at the same time make judges more accountable for their decisions. The proposed constitutional court would be similar to the system in South Africa, and would help ease the Supreme Court's load as more appeals are filed.

The suggestions of the television channel and an increase in transparency in the court come as the Supreme Court faces criticism for judicial accountability. In November, judges of the Supreme Court voluntarily made public disclosures [JURIST report] of their financial assets [list]. Despite the release, Transparency International [advocacy website] questioned the benefit of disclosure when there is no way to confirm that it is entirely accurate, given the announcement that the judges will not entertain any queries or scrutiny [CJAR press release, PDF] of assets listed. In August, the judges made the decision [JURIST report] to go public with their assets, despite not being required to do so by Indian law.

[JURIST] The US Court of Appeals for the Second Circuit [official website] heard arguments on Monday in an appeal by multi-national corporations accused of assisting the South African government during the apartheid-era [JURIST new archive]. The corporations, which include IBM, Ford Motor Co., Daimler and General Motors Corp. [corporate websites], are accused of aiding the human rights abuses committed by the South African government by continuing to do business with the country, despite knowledge that their products were being used to support apartheid. The court will first determine [AFP report] whether it has jurisdiction to hear the appeal. The corporations argue the case should be dismissed because they cannot be held responsible for crimes committed by the South African government. The lawsuit was brought by South African plaintiffs under the Alien Tort Claims Act (ATCA) [text].

In April, the US District Court for the Southern District of New York (SDNY) [official website] denied [JURIST report] the corporations' motion to dismiss the case. Despite initial opposition to the complaint over potential harm to relations with the US and foreign investment in the country, the South African government now supports the action. In 2008, the US Supreme Court [official website] affirmed a Second Circuit judgment on the rare grounds that it lacked quorum [JURIST report], thus sending the case back to the SDNY. The Second Circuit's decision allowed the ATCA action to go forward to trial [JURIST report], but had dismissed additional claims filed under the Torture Victims Protection Act [text].