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Legal news from Sunday, May 30, 2010




Arizona governor removes state AG from immigration lawsuit defense
Erin Bock on May 30, 2010 5:16 PM ET

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[JURIST] Arizona Governor Jan Brewer [official website] said Friday that she will not seek the assistance [statement, PDF] of state Attorney General Terry Goddard [official website] in defending against challenges to the new immigration law [SB 1070 materials; JURIST news archive]. The announcement came after Goddard met with officials from the US Department of Justice (DOJ) [official website] Friday and held a press conference hours before the DOJ met with the governor and her legal team. Brewer expressed her displeasure at Goddard's meeting with the DOJ, calling it "disturbingly similar" to Arizona Congresswoman Gabrielle Giffords' correspondence with the Obama administration [press release] to assist in developing a plan to deploy National Guard troops to the US-Mexican border [JURIST report]. Brewer cited a provision in the new immigration bill that gives her authority to seek the assistance of outside counsel rather than the assistance of the attorney general in defending the bill:
The Legislature gave me this authority because of its lack of confidence in the Attorney General's willingness to vigorously defend this legislation that is so critical to protecting the safety and welfare of Arizona's citizens. ... Due to Attorney General Goddard's curious coordination with the U.S. Department of Justice today and his consistent opposition to Arizona's new immigration laws, I will direct my legal team to defend me and the State of Arizona rather than the Attorney General in the lawsuits challenging Arizona's immigration laws.
Goddard said that he urged the DOJ not to file its own lawsuit [press release] in opposition to the bill, saying that "Arizona will fight back" against any challenges. He called for the Obama administration to "implement comprehensive border reform" instead of adding another suit to those already pending against the state. The law is set to go into effect on July 29.

Several lawsuits have been filed in response to the bill, which was signed into law [JURIST reports] at the end of April, including a suit by an Arizona police officer alleging that the law will hamper police investigations. The American Civil Liberties Union [advocacy website] also filed suit [JURIST report], challenging the constitutionality of the law and seeking an injunction, though some find the law is constitutional on its face [JURIST op-ed]. Proponents of the law argue that it will discourage illegal immigration, while opponents contend it will lead to discriminatory police practices based on race. The Obama administration, though supporting immigration reform, has sharply criticized the law [JURIST report], calling it "misguided" and expressing concern that it could be applied in a discriminatory fashion. These criticisms are shared by Mexican President Felipe Calderon [official website, Spanish] who called the law a "violation of human rights" [JURIST report]. Earlier this month, a group of UN experts found that the law could violate international standards [JURIST report] that are binding on the US.




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US judge orders NYC bomb plot suspect deported to Pakistan
Erin Bock on May 30, 2010 3:34 PM ET


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[JURIST] A US immigration judge on Thursday ordered Times Square bombing suspect Aftab Ali Khan deported to his native Pakistan. Khan was arrested along with two other men earlier this month on immigration charges under the suspicion that they transferred money to Times Square bombing suspect Faisal Shahzad, but Khan told authorities that he had never heard of Shahzad [AFP report]. Authorities believe that Khan might not have known what the money was for, but Shahzad's phone number was found in Khan's cell phone and written on an envelope in his apartment. Khan's lawyer Saher Macarius [firm website] attempted to convince the court to let Khan leave the country voluntarily, rather than through a deportation order, but Judge Robin Feder rejected the request. Khan has 30 days to appeal the order before being deported. Shahzad, a Pakastani-born US citizen, was taken into custody on May 3 [JURIST report] after an SUV containing explosives was found parked in Times Square on May 1. He was charged [complaint, PDF] with five counts, including attempting to use a weapon of mass destruction, attempting to kill and maim people in the US, using and carrying a destructive device, transporting an explosive device, and attempting to damage buildings, vehicles and other property. He is scheduled for a hearing in a New York federal court on June 1.

Shahzad's arrest stirred up controversy [Capitolist report] over whether terrorism suspects should be read Miranda rights. Earlier this month, a group of US lawmakers introduced a bill [JURIST report] that would strip US citizenship rights from those suspected of engaging in acts of terrorism. The bill, known as the Terrorist Expatriation Act (TEA) [text, PDF], would give the State Department [official website] the power to revoke citizenship of a US national who provides material support or resources to a foreign terrorist organization or engages in/supports hostilities against the US or its allies. The American Civil Liberties Union [advocacy website] came out against the bill [press release] finding it to be "unconstitutional and ineffective." Recent terrorism arrests have also created controversy over the proper venue in which to try those suspected of terrorism. In April, US Attorney General Eric Holder [official website] stated that the government has not ruled out [JURIST report] prosecuting certain high-profile terror suspects, such as alleged 9/11 conspirator Khalid Sheikh Mohammad [JURIST news archive], in civilian court in New York City.




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UN SG calls for global reform of anti-gay laws
Sarah Miley on May 30, 2010 10:46 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] called Saturday for gay rights reform [UN News Centre report] throughout the international community. Praising Malawian President Bingu wa Mutharika [official website] for his Friday decision to pardon a gay couple recently sentenced to 14 years in prison on sodomy charges, Ban stated [speech text] that the UN cannot "stay quiet when people are denied fundamental rights - whatever their race or faith or age or gender or sexual orientation." Gay rights have been a contentious issue [Economist backgrounder] in both developed and developing nations, with more than 80 countries criminalizing homosexuality. The issue is especially prevalent in Africa where over 70 percent of countries criminalize non-traditional sexual orientation, with some charges carrying the death penalty. Although Mutharika pardoned the two men on their convictions of "indecent practices between males" and "unnatural offences" at the behest of the secretary-general, the president expressed his disapproval [AFP report] of homosexuality, calling it "totally wrong" and against the culture and traditions of Malawi. Mutharika's statement echoes the current tone of the African Union (AU) [official website], which Malawi now heads. The secretary-general will face an uphill battle with AU member-countries as most nations, although "secular," have prevalent religious leaders and strong public support for anti-gay legislation. Ban held that discrimination based on sexual orientation is not in line with basic international human rights, and heads of state must take action to reform their laws to meet UN standards for the protection of this fundamental right.

While African nations have been slow to protect gay rights, several other regions have recently passed legislation expanding the rights of homosexuals. Earlier this month, the Argentine Chamber of Deputies [official website, in Spanish] voted 126-109 in favor of a bill to legalize same-sex marriage [JURIST report] in the country. The bill would also give gay couples the right to adopt children, one of the bill's more controversial provisions. Portugal quickly followed suit two weeks later when President Anibal Cavaco Silva [official website, in Portuguese] signed a bill [JURIST report] that legalizes same-sex marriage but stops short of allowing same-sex couples to adopt. In April, the Philippines expanded political rights for the gay community when the Supreme Court [official website] ruled [JURIST report] that a prominent gay rights organization may field candidates in the upcoming national elections as an accredited political party. This progress is not reflected in recent legislation of many African nations. The secretary-general's next stop is Uganda, where the government is currently considering legislation [JURIST report] that would prohibit the sale of property to homosexuals and charge individuals who fail to report homosexual activity.




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Most Guantanamo detainees 'low-level' combatants: government report
Sarah Miley on May 30, 2010 8:49 AM ET

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[JURIST] A task force initiated by the US government to evaluate the status of Guantanamo Bay [JURIST news archive] detainees has reported that only 10 percent of inmates were terrorist leaders [report, PDF] when President Barack Obama [official website] took office in 2009. The Guantanamo Bay Task Force completed the report in January, but it was not disclosed to Congress until last week, according to the Washington Post, which published the report [WP report] Friday. The "rigorous interagency review" established that out of the 240 detainees, only two dozen were "leaders, operatives and facilitators involved in plots against the United States." The task force recommended 126 inmates be transferred and 36 be prosecuted by federal court or military tribunal. The task force also concluded that 48 detainees were too dangerous to be transferred, but were unable to be prosecuted, and 30 Yemeni detainees were being held on "conditional" detention based on the security environment in Yemen. In deciding which detainees should be subject to continued detention, the task force evaluated the inmates' roles in terrorist organizations, advanced training or experience, expressed recidivist intent, and history of association with extremist activity. The report also expressed the ongoing effort by the State Department to transfer detainees out of Guantanamo Bay and the extensive review process required for resettlement:
The process for engaging a country on resettlement issues can be lengthy and complicated. The State Department has engaged in discussion with dozens of countries across the globe to initiate or further resettlement negotiations once it has been determined that a government is open to discussions. When this process is successful, initial receptiveness leads to discussions regarding individual detainees, foreign government interagency review, foreign government interviews of prospective resettlement candidates, the foreign government's formal decision-making process, integration plans, and, ultimately, resettlement. The length of the effort often has been influenced by political and other issues in potential resettlement countries, third-country views with respect to detainee resettlement, and public views of the Guantanamo detention facility generally. Depending on how these factors affect individual cases, the process can be very lengthy.
The reported results were unanimously approved by all agencies involved, which included the Department of Justice, Department of Defense, Department of State, Department of Homeland Security, Office of the Director of National Intelligence, and Joint Chiefs of Staff [official websites].

The Obama administration continues its push to close the Guantanamo Bay facility, despite missing its self-imposed one-year deadline [JURIST report] in January. The administration has run into several hurdles in closing the prison, including opposition from members of Congress and the suspension of detainee transfers to Yemen [JURIST report]. Last week, the US House Armed Services Committee [official website] approved a bill [JURIST report] prohibiting the Obama administration from modifying or building a facility in the US to hold detainees currently held at Guantanamo. The bill requires [summary, PDF] that any plan to construct or modify US facilities to accommodate Guantanamo transfers be "accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility." As the Obama administration has not presented such a plan to Congress, the bill prohibits the use of any funds for the purpose of preparing a US facility for Guantanamo transfers. The number of detainees at Guantanamo has significantly been reduced as the administration continues to transfer detainees to a growing list of countries, including Italy, Bulgaria, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Algeria, Somaliland, Palau, Belgium, Afghanistan, and Bermuda [JURIST reports].




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