[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in two cases. In Carachuri-Rosendo v. Holder [oral arguments transcript, PDF; JURIST report], the court heard arguments on 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. Counsel for the petitioner, Carachuri-Rosendo argued that, "[i]ndividuals, such as Petitioner, who have been convicted of drug possession but as to whom there has been no finding of recidivism, have been convicted of a misdemeanor punishable under the Controlled Substances Act rather than a felony." Counsel for the US government argued that, "Congress's judgment here was that all aliens who engage in the same serious conduct would be treated the same for immigration purposes."

In Robertson v. United States ex rel. Watson [oral arguments transcript, PDF], the court heard arguments on 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 US. Counsel for the petitioner, John Robertson, argued:

The United States now agrees that the fact that a criminal offense may only be prosecuted by the sovereign is a foundational premise of our Constitution. Because Mr. Robertson was prosecuted for criminal contempt in a private right of action, his prosecution was unconstitutional, a nullity in our view, and his convictions must be vacated.

when a single US Attorney's Office says that the government will decide to drop a certain set of charges, that US Attorney's Office we believe is - is speaking for itself, unless there is some indication that it is speaking more widely in such a way that will bind other parts of the government.

[JURIST] Executive secretary of the UN Framework Convention on Climate Change (UNFCCC) [official website] Yvo de Boer said Wednesday that it is unlikely a new climate change treaty will be concluded until 2011. After the Copenhagen summit (COP15) in December failed to produce [JURIST report] a binding agreement, de Boer expressed hope that the next annual meeting in November in Cancun, Mexico will get negotiations back on track [AP report]. The UNFCCC announced [press release] that 111 countries and the European Union (EU) have expressed support for the non-binding Copenhagen Accord [text, PDF], which calls for self-imposed limits on greenhouse gas emissions [JURIST news archive]. Additionally, the UNFCCC received 75 national pledges, from nations that account for more than 80 percent of global emissions from energy use, to cut or limit emissions of greenhouse gases by 2020. De Boer noted these pledges will not suffice to meet the Copenhagen Accord's goal of limiting global temperatures [UN News Centre report] to two degrees Celsius above pre-industrial levels.

Earlier this month, China and India, among the world's largest and most quickly growing producers of greenhouse gas emissions, agreed to endorse [JURIST report] the Copenhagen Accord. The UNFCCC announced [JURIST report] in February that another round of formal climate talks will be held April 9-11 in Bonn, Germany, to follow up on the recent Copenhagen conference. While no legally-binding agreement was reached at the conclusion of the COP15 in December, 192 UN member countries agreed to take note [UN News Centre report] of the non-binding accord developed by leaders from the US, China, India, Brazil, and South Africa. In January, more than 50 countries, including the US, China, and EU member states, submitted plans [JURIST report] to reduce greenhouse gas emissions to the UNFCCC. Relative to 2005 levels, the US has pledged to reduce emissions to 17 percent, while China has targeted a 40 to 45 percent reduction per GDP unit. EU members pledged a 20 percent reduction below 1990 levels.

[JURIST] A Belgian parliamentary committee voted unanimously Wednesday to ban the Islamic burqa [JURIST news archive] and other "full veils" from being worn in public. The proposed legislation [materials, in French] applies to areas "accessible to the public" or areas meant for "public use or to provide public services." Violators could face a penalty of up to seven days in jail or a fine of 15 to 25 euros. The proposed law does not impose restrictions on traditional Muslim headscarves, and it provides for groups to apply for a temporary exemption [Times Online report] for festivals or other events. The proposed ban has ignited concern among some who view it as an "attack on civil liberties." If approved by Parliament [official website, in Dutch], Belgium will be the first European nation to impose a nationwide restriction on traditional face-covering veils. The lower house of parliament is scheduled to vote on the bill on April 22.

France has also been pressing for a ban on the burqa. Earlier this week, the French Council of State [official website, in French] advised the French government [report, PDF; in French] that a complete ban on full Islamic veils risks violating [JURIST report] the French Constitution [text] and the European Convention on Human Rights [text]. Last week, French President Nicholas Sarkozy [official website, in French] announced that the government will introduce legislation [JURIST report] to ban traditional Muslim face veils [transcript, in French] in public places. Sarkozy's announcement came just weeks after a French parliamentary commission charged with investigating whether to enact laws banning the wearing of burqas released its report [text, PDF; in French] calling for a partial ban [JURIST report] that would apply in public facilities, including hospitals, schools, and public transportation, and to any individual attempting to receive public services. Also last week, lawmakers in Quebec introduced a bill that would ban women wearing full face veils from public services [Star report], such as receiving care at a hospital or going to a public university.

[JURIST] An Indian court on Wednesday heard final arguments in the trial of Mohammed Ajmal Kasab [NDTV backgrounder], accused of participating in the November 2008 Mumbai terrorist attacks [BBC backgrounder; JURIST news archive], bringing the yearlong proceedings to a close. The court heard from more than 600 prosecution witnesses [WP report] and two members of the National Security Guard [official website] who responded to the attack. Prosecutors accuse Kasab of being one of the gunmen photographed during the attacks, which were allegedly coordinated by Pakistani militant group Lashkar-e-Taiba (LeT) [CFR backgrounder]. Kasab claims that he confessed to the crimes in February 2009 after being tortured [Hindu report] by police. Special public prosecutor Ujjwal Nikam praised [WSJ report] the speed with which the trial was conducted. Judge ML Tahiliyani, specially appointed [PTI report] in January 2009 to preside over the trial of three suspects detained after the attacks, reserved judgment [Times of India report] until May 3.

The lawyer for the accused gunman faced several setbacks during the trial, including a failed change of venue to a juvenile court [Indian Express report] and the introduction of the disputed confession. Kasab's first defense lawyer was removed [JURIST report] last year because she had agreed to represent a victim of the attacks in a civil suit. Kasab first appeared [JURIST report] before Tahiliyani in March 2009 via video. In February 2009, Pakistan officials conceded [JURIST report] that the attacks were partially planned in their country and that the perpetrators traveled by ship [NYT report] from southern Pakistan to Mumbai. One scholar had suggested that an international tribunal be formed [JURIST op-ed] in order to avoid further complications between Pakistan and India. The attacks in Mumbai, which claimed at least 170 lives, were carried out at 10 locations across the city including the landmark Taj Mahal Palace hotel where nine of the 10 gunmen were killed.

[JURIST] The International Criminal Court (ICC) [official website] on Wednesday granted the request [decision, PDF] of chief prosecutor Luis Moreno-Ocampo [official profile] to investigate the deadly violence perpetrated after the 2007 Kenyan presidential election [JURIST news archive]. Earlier this month, Ocampo submitted the names [JURIST report] of 20 senior political and business leaders who allegedly "bear the gravest responsibility" for the post-election violence. The ICC's decision to authorize the prosecutor's investigation means that Kenyan leaders may be called before the court. Summarizing the decision [press release], the court explained:

upon examination of the available information, bearing in mind the nature of the proceedings under article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory. The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 7-2 in Padilla v. Kentucky [Cornell LII backgrounder; JURIST report] that the Sixth Amendment [text] guarantee of effective assistance of counsel requires a criminal defense lawyer to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation. The Supreme Court of Kentucky ruled [opinion, PDF] that a guilty plea induced by bad advice does not amount to ineffective assistance of counsel and does not warrant setting aside the guilty plea. In reversing the decision below, Justice John Paul Stevens wrote:

We granted certiorari to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.

[JURIST] The Serbian Parliament [official website] adopted a declaration early Wednesday morning condemning the 1995 Srebrenica massacre [BBC timeline; JURIST news archive], in which 8,000 Muslims were killed. After a day-long debate, "The Declaration of the National Assembly of the Republic of Serbia Condemning the Crime in Srebrenica" [official summary] was passed by a narrow margin, with 127 out 250 members [AP report] voting in its favor. The parliament also called upon other former Yugoslavian countries to issue similar declarations [press release]. Head of the Deputy Group for European Serbia Nada Kolundzija stated that "passing the declaration is in the Serbian people's best interest and it is its moral duty to distance itself from the crime." The declaration was also met with criticism from some members of parliament. MP Dragan Todorovic told Serbia's Radio Srbija that the declaration should be withdrawn [Radio Srbija report] because of the negative light it will cast on the nation. Other criticisms are that the declaration did not call the massacre a genocide and that the declaration did not condemn all of the crimes that occurred in Yugoslavia from 1991-1995.

On Tuesday, The Hague Appeals Court upheld UN immunity [JURIST report] from prosecution in claims brought by relatives of victims of the Srebrenica massacre. The group, known as the Mothers of Srebrenica, alleged that the Netherlands should be held liable for Dutch soldiers negligently failing to protect civilians during the Bosnian conflict by forcing them out of a UN-designated "safe area." The court found that immunity is essential to the UN being able to carry out its duties and that the Dutch soldiers could not be held responsible in their capacity as UN peacekeepers. Earlier this month, former Bosnian Serb leader Radovan Karadzic [JURIST news archive] made his opening statement [JURIST report] before the International Criminal Tribunal for the Former Yugoslavia, where he is being tried for war crimes. He is defending himself against 11 counts, including genocide and murder. Karadzic has called the massacre a farce [JURIST report] promulgated by Bosnian Muslims to incite hatred against Serbian forces. He could face life in prison if convicted.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 5-4 in Shady Grove Orthopedic Associates v. Allstate Insurance Co. [Cornell LII backgrounder; JURIST report] that a state legislature cannot prohibit the federal courts from using the class action device for state law claims. The US Court of Appeals for the Second Circuit ruled [opinion, PDF] that the state law was substantive and could be applied in federal court, upholding a lower court's dismissal of the suit. In reversing the decision below, Justice Antonin Scalia wrote for a divided court:

The short of the matter is that a Federal Rule governing procedure is valid whether or not it alters the outcome of the case in a way that induces forum shopping. To hold otherwise would be to "disembowel either the Constitution's grant of power over federal procedure" or Congress's exercise of it.

[JURIST] Pakistan's National Accountability Bureau (NAB) [official website] on Wednesday asked Swiss officials to reopen a corruption investigation against Pakistani President Asif Ali Zardari [official website]. The request [DAWN report] was made in a letter from the NAB, the country's chief anti-corruption body, to Swiss officials, but the Swiss Federal Department of Justice [official website] has not confirmed receipt of the request. Zardari was previously convicted of money laundering in Switzerland in 2003, but that conviction was later overturned [Al Jazeera report], and subsequent attempts by the Swiss to convict him were unsuccessful [JURIST report]. Aides to Zardari believe that presidential immunity protects him from prosecution, even after Pakistan's Supreme Court [official website] overturned an amnesty law [JURIST report] implemented by former president Pervez Musharaff. However, Zardari may face attacks on his eligibility to have been elected president in 2008, since prior allegations of corruption may have rendered him ineligible for office.

The request by the NAB comes one day after the Supreme Court ordered the bureau to reopen all corruption investigations [JURIST report] within 24 hours. That order was accompanied by a contempt of court notice for the bureau's chairman, Naveed Ahsan. The Supreme Court's order is likely to increase tensions between the president and the judiciary, which have recently clashed over court appointments [JURIST report]. The same day as the Supreme Court's order to the NAB, Pakistani police detained Ahmed Riaz Sheikh, Director General of the Federal Investigation Agency, in the first arrest of a government official since amnesty was rescinded. In December, a Pakistani court issued an arrest warrant [JURIST report] for Interior Minister Rehman Malik, who is accused of corruption.

11:00 AM ET - Swiss authorities have refused to reopen the corruption investigation [AP report], claiming Zardari still has legal immunity.

[JURIST] A judge for the US District Court for the District of Columbia [official website] criticized the government Tuesday for a lack of accountability, despite granting approval [order, PDF; opinion, PDF] to a $3 million settlement agreement in a civil suit brought by former Drug Enforcement Administration (DEA) [official website] agent Richard Horn. The government evoked the state secrets privilege [JURIST news archive] to prevent documents from being made public in the case in which Horn accused the Central Intelligence Agency (CIA) [official website] of spying on him. Despite granting the approval, Chief Judge Royce Lamberth expressed his displeasure with the government for what he believed was a lack of accountability to the taxpayers. He wrote:

However, it is not without some misgiving that the Court reaches this decision. Another member of this Court last year approved the settlement of another case (involving the FBI's investigation of the anthrax mailings in late 2001) which involved payment to an individual plaintiff of almost $6,000,000 by the United States. It does not appear that any government official was ever held accountable this huge loss to the taxpayer.

Now this Court is called upon to approve a $3,000,000 payment to an individual plaintiff by the United States, and again it does not appear that any government officials have held accountable for this loss to the taxpayer. This is troubling to the the Court.

[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] filed suit [complaint, PDF; press release] on Tuesday challenging the strict visitation and communication restrictions [visiting regulations, PDF] at two experimental federal prison units called "Communications Management Units" (CMUs). The complaint alleges that the prisoners have suffered "severe and unjustifiable emotional distress" as a result of being deprived of fundamental constitutional rights. Prisoners at the CMUs are forbidden from hugging, touching, or embracing their children or spouses during visits. Transfers to the CMUs are not explained and cannot be appealed to a review board. CCR attorneys also claim that the CMUs have perpetuated a "pattern of religious and political discrimination and retaliation" because the vast majority of CMU prisoners are Muslim. CCR Attorney Alexis Agathocleous claims that the CMUs are an "experiment in social isolation" that has dispensed with due process and created a situation "ripe for abuse." On behalf of the prisoners, CCR is seeking declaratory and injunctive relief. If granted, the injunction would place the prisoners in the general population of a less restrictive facility.

The CMUs, located in Terre Haute, Indiana, and Marion, Illinois, were secretly opened during the George W. Bush administration. The facilities were created in response to criticism [WP report] that the prison bureau had failed to adequately monitor terrorist inmates' communications. The CMUs allow prison officials to closely monitor and control the communications of certain prisoners and to isolate them from other prisoners and the outside world. Concerns about the restraints placed on inmate communication and the racial composition of the inmate population were voiced when the facilities were opened.

[JURIST] US President Barack Obama on Tuesday signed into law [transcript of remarks] the Health Care and Education Reconciliation Act [HR 4872 materials], which represents a group of amendments to the recently approved health care legislation [JURIST news archive] and also provides changes to the administration of the federal student loan program. The Student Aid and Fiscal Responsibility Act [HR 3221 materials], a rider attached to the main bill, will remove banks and private lenders as providers for federal student loans and place that responsibility with the government. The health care amendments addressed concerns in the original bill raised by Republicans, including provisions to help uninsured Americans pay for coverage, concerns over the effects to Medicare, and lowering the penalty for not buying insurance. In his remarks, Obama lauded the changes made to the student loan program and the final passage of health care reform:

[T]he health insurance reform bill I signed won't fix every problem in our health care system in one fell swoop. But it does represent some of the toughest insurance reforms in history. It represents a major step forward towards giving Americans with insurance - and those without - a sense of security when it comes to their health care. It enshrines the principle that when you get sick, you've got a society there, a community, that is going to help you get back on your feet.

For a long time, our student loan system has worked for banks and financial institutions. Today, we're finally making our student loan system work for students and our families. But we're also doing something more. From the moment I was sworn into office, I've spoken about the urgent need for us to lay a new foundation for our economy and for our future. And two pillars of that foundation are health care and education, and each has long suffered from problems that we chose to kick down the road.

[JURIST] Corruption, abuse of power, and a focus on short-term security goals in Afghanistan have intensified the issue of poverty, affecting more than two-thirds of the population, according to a Tuesday report [text, DOC; press release] from the UN's Office of the High Commissioner for Human Rights (OHCHR) [official website]. According to the report 36 percent, or nine million people, live in absolute poverty and cannot meet basic needs. Additionally, 36 percent were found to live just above the poverty line. While the report said that many Afghan leaders shape public policy for their own personal or vested interests, it said that the lack of security, the disparate allocation of resources, and discrimination were also reasons for the extreme poverty. The report focused on the need to address human rights issues in order find a solution to hardships facing the Afghan people:

Poverty is neither accidental, nor inevitable in Afghanistan: it is both a cause and consequence of a massive human rights deficit including widespread impunity and inadequate investment in, and attention to, human rights.

Understanding the human rights dimension of poverty is critical to the identification of underlying structural problems and processes that, left unaddressed, run the risk of undermining poverty reduction initiatives. A human rights perspective and analysis helps ensure that causes, and not just consequences, inform the design and implementation of programmes geared to the alleviation or elimination of chronic poverty.

[JURIST] The Turkish ruling party on Tuesday submitted its controversial reform package to parliament, despite warnings from Turkish President Abdullah Gul [BBC profile] that the party should take more precautions before amending the constitution. The reform package contains seven revisions [Hurriyet report] from the original amendments unveiled last week [JURIST report], including a highly-disputed reform to the judiciary system that would allow military and government officials to be tried in civilian court. The reform would also make it harder for the government to disband political parties that challenge the country's nationalist establishment and would ban the prosecution of the 1980 coup leaders. The ruling Justice and Development Party (AKP) [party website, in Turkish] created the amendments to promote democracy in Turkey and support its bid into the European Union (EU) [official website]. The parliamentary vote will take place next week, but will most likely be put to a public referendum as there may not be adequate support between the parties. Opposition parties have spoken out against the reforms, holding that the amendments are not aimed at enhancing democratic principles, but instead to cement AKP's standing as the ruling party.

The proposed amendments have been met with opposition by Turkey's Supreme Court [official website, in Turkish]. In an interview last week, the president of the court Hasan Gerceker [official profile, in Turkish] declared that the proposed amendments threaten separation of power and judicial independence [JURIST report]. Turkey has faced several obstacles as it works toward membership in the EU, including its human rights record, its stance towards political parties, and tension [JURIST news archive] between the AKP and the military.