[JURIST] US President Barack Obama [official website] on Thursday reiterated the need for comprehensive immigration reform [statement] and called on members of Congress to work in a bipartisan fashion to pass immigration legislation. Obama noted the role of immigrants throughout US history and indicated that immigrants must continue to play a role as the country grows and develops. He acknowledged the continuing difficulty with securing the border but cited efforts made by the administration to improve enforcement of current laws, including increased numbers of enforcement agents. He also acknowledged the frustration that has led states, like Arizona, to enact their own immigration laws [JURIST news archive]. Obama called these laws "ill conceived" and "divisive" and indicated that they are unenforceable. He stated that reform should include holding businesses responsible for hiring and exploiting undocumented workers, a path to citizenship for people living in the US illegally and a path to citizenship for the children of illegal immigrants. Obama endorsed the DREAM act [materials], which would allow students who graduate from US high schools, but are not US citizens, to gain citizenship by completing a college degree or serving two years in the US military. He also stressed the need for bipartisanship in order to accomplish immigration reform, stating:
I'm ready to move forward; the majority of Democrats are ready to move forward; and I believe the majority of Americans are ready to move forward. But the fact is, without bipartisan support, as we had just a few years ago, we cannot solve this problem. Reform that brings accountability to our immigration system cannot pass without Republican votes. That is the political and mathematical reality. The only way to reduce the risk that this effort will again falter because of politics is if members of both parties are willing to take responsibility for solving this problem once and for all.
Opponents of the plan to grant amnesty to some illegal immigrants contend that it would only encourage further illegal migration [NYT report]. It is unclear whether Congress will have the political will to address immigration reform in an election year.
Arizona's new immigration law [SB 1070], which has been seen as an impetus for the renewed immigration debate, has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling. Last month, the Mexican government filed an amicus curiae brief [text, PDF] with the US District Court for the District of Arizona [official website] asking that the law be declared unconstitutional [JURIST report]. Also last month, the city of Tucson, Arizona joined a lawsuit [JURIST report] against the state's new immigration law arguing that it law violates the Commerce Clause and Fourth Amendment [Cornell LII backgrounders] of the US Constitution [text], in addition to federal immigration law, through which the federal government has "fully occupied" the field of immigration control. 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]. In May, a group of UN experts found that the law could violate international standards [JURIST report] that are binding on the US.
[JURIST] The American Bar Association (ABA) [official website] on Wednesday filed an amicus curiae brief [text, PDF] urging the federal district court in Arizona to block the enforcement of the state's controversial immigration law [JURIST news archive]. The brief was filed in support of a class-action lawsuit [JURIST report] led by the American Civil Liberties Union (ACLU) [advocacy website], challenging the constitutionality of the Arizona legislation. According to the brief, "the ABA has long opposed initiatives such as S.B. 1070, which, by their plain language, can only be implemented by intruding on the civil rights of both citizens and noncitizens." The ABA argues that the federal government should have exclusive power [press release] over immigration issues. In addition, the brief, which was filed in the US District Court for the District of Arizona [official website], states that the law will increase the use of racial profiling, result in unlawful and unreasonable detentions and increase the burden on the state's indigent defense system. The ABA usually waits until a case reaches the appellate level to file an amicus curiae brief, but ABA President Carolyn Lamm [professional profile] said this case requires "extraordinary action:"
The Arizona immigration bill requires that police seek proof of a person's immigration status if they have a reasonable suspicion that the person is in the country illegally. The law is set to go into effect in January 2011.
Last week, the Mexican government filed an amicus curiae brief [JURIST report] supporting the ACLU suit, claiming a substantial interest in ensuring its "bilateral diplomatic relations" with the US remain "transparent, consistent and reliable, and not frustrated by the actions of individual US states." The government also claims an interest in ensuring that its citizens are "accorded human and civil rights when present in the US in accordance with federal immigration law." Arizona's new immigration law has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling, since it was signed into law [JURIST report] by Arizona Governor Jan Brewer (R) [official website] in April. In addition to the class action filed by the ACLU, Brewer is also currently facing federal lawsuits filed by the National Coalition of Latino Clergy and Christian Leaders and several Tuscon police officers, who claim they can not properly implement the law without racially profiling. 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.
[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Wednesday filed a lawsuit [complaint, PDF] against the US government challenging the status of 10 US citizens and legal residents [press release] on the government's "No Fly List." Due to their status, the plaintiffs are prohibited from flying to or from the US or over US airspace. According to the complaint, thousands of people, including the plaintiffs, were never informed as to why they were placed on the list or given a chance to clear their names. The list has left several individuals stranded abroad including plaintiffs Ayman Latif, a disabled US Marine Corps veteran stranded in Egypt, and Raymond Earl Knaeble a US Army veteran stuck in Colombia. The complaint outlined that consequences of the government adding individuals to the list without appropriate safeguards in place:
The United States' system of screening commercial airline passengers against databases of suspected terrorists is broken. Thousands of people have been barred altogether from commercial air travel without any opportunity to confront or rebut the basis for their inclusion, or apparent inclusion, on a government watch list known as the "No Fly List." The result is a vast and growing list of individuals whom, on the basis of error or innuendo, the government deems too dangerous to fly, but too harmless to arrest. Many of these individuals, like the Plaintiffs in this action, are citizens and lawful permanent residents of the United States; some, including three Plaintiffs in this action, are veterans of the United States Armed Forces. Some U.S. citizens and lawful permanent residents have been placed on the list while traveling abroad and therefore have found themselves stranded in foreign countries, without explanation or appropriate visas, unable to return home to their families, jobs, and needed medical care in the United States. The Constitution does not permit such a fundamental deprivation of rights to be carried out under a veil of secrecy and in the absence of even rudimentary process.
In 2006, the FBI and the Transportation Security Administration [official website] agreed to pay the ACLU $200,000 in attorney's fees to settle a case brought by the civil rights organization in 2003 challenging the government's no-fly list [JURIST report] and requesting the disclosure of records. The documents noted that construction of the list was based on "two primary principles," but that there were "no hard and fast" rules governing decisions of who was put on the list. The US Court of Appeals for the Ninth Circuit [official website] ruled in 2008 that those placed on the government's "no-fly list" can challenge their inclusion on the list [JURIST report] in federal district courts. The court held that the Terrorist Screening Center, which actually maintains the list, is a subsection of the FBI and is therefore subject to review by the district courts. Also in 2008, the DOJ Office of the Inspector General (OIG) [official website] issued a report [text, PDF] saying that the FBI had submitted inaccurate information to the list [JURIST report], that the information was rarely reviewed before its submission and even if discrepancies become apparent they were often left unchanged.
[JURIST] Rwandan Prosecutor General Martin Ngoga and a spokesperson for the International Criminal Tribunal for Rwanda (ICTR) [official website] on Wednesday reaffirmed their cooperation [press release] in the prosecution of crimes relating to the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive], in which nearly 800,000 people, primarily Tutsis, were killed. Ngoga reiterated Rwanda's commitment to honoring its obligations under the Memorandum of Understanding [materials]. The cooperation between the Rwandan government and the ICTR was illustrated last month when the ICTR transferred the cases [press release; JURIST report] of 25 suspects to the Rwandan authorities. The suspects, who have been investigated but not yet indicted by the ICTR, are believed to be in hiding abroad. Ngoga also assured ICTR defense lawyers that they can work in Rwanda without fear of interference by authorities. He commented specifically on the case of US lawyer and JURIST forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] who was arrested and detained [JURIST report] in Rwanda on charges of genocide denial. Ngoga stated that Erlinder's arrest was unrelated to his work with the ICTR and that it will have no effect on other ICTR defense lawyers working in the country.
Last month, ICTR defense lawyers released a statement [text] calling for Erlinder's release [JURIST report] and threatening to boycott other ICTR trials until international authorities worked to obtain Erlinder's release and to guarantee immunity for "every person engaged in seeking truth before any international or domestic jurisdiction." Erlinder was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested in April [JURIST report] on similar charges. Erlinder pleaded not guilty [JURIST report], but was deemed a flight risk [AFP report] and denied bail, despite his claim that he needed to return to the US for medical treatment following what Rwandan officials say was a suicide attempt [JURIST reports]. Rwandan authorities ultimately reversed their decision, and Erlinder was released on bail [JURIST report]. He returned to the US last month [JURIST report], after agreeing to the terms of his release set by the Rwandan court.
[JURIST] The UK Iraq Inquiry [official website] released declassified documents [materials] on Wednesday showing that former prime minister Tony Blair [official profile; JURIST news archive] was warned by former attorney general Peter Goldsmith [professional profile] that the Iraq invasion was illegal without UN support. The documents illustrate how Goldsmith repeatedly warned Blair that UN Security Council resolution 1441 [text, PDF], which offered Iraq under Saddam Hussein "a final opportunity to comply with its disarmament obligations," did not authorize military force. In a letter [text, PDF] to the former PM dated January 30, 2003, Goldsmith stated:
In view of your meeting with President Bush on Friday, I thought you might wish to know where I stand on the question of whether a further decision of the [UN] security council is legally required in order to authorise the use of force against Iraq. I remain of the view that the correct legal interpretation of resolution 1441 is that it does not authorise the use of force without a further determination by the security council. My view remains that a further [UN] decision is required.
Blair illustrated his frustration with Goldsmith's legal advice by scribbling "I just don't understand this" in the margins. The release of the documents will make it difficult for Blair to use a good-faith defense against charges that he knowingly led the country into an illegal invasion.
The Iraq Inquiry, led by Sir John Chilcot, was created by former prime minister Gordon Brown [official profile] in 2009 to identify lessons that can be learned [JURIST report] from the Iraq invasion. In January, the inquiry released a 2002 letter [JURIST report] from Goldsmith to former secretary of defense Geoff Hoon [BBC profile] in which Goldsmith warned the Cabinet that the Iraq invasion was not supported by international law. Former chief legal adviser to the UK's Foreign and Commonwealth Office (FCO) [official website] Sir Michael Wood [UN profile, PDF] told the Iraq Inquiry in January that he had advised the Foreign Ministry that the invasion was illegal [JURIST report]. During a public hearing in February, former UK international development secretary Clare Short told the inquiry Blair was "misleading" and "deceitful" [JURIST report] with the Cabinet and parliament regarding the Iraq invasion. Additionally in February, former UK Foreign Ministry secretary Jack Straw [Guardian profile] testified [JURIST report] that he did not ignore legal advice that the invasion of Iraq lacked basis in international law. Brown also testified before the inquiry [JURIST report] in March stating that he remains convinced that the decision to participate in the 2003 Iraq invasion was the appropriate course of action.
[JURIST] A British MP on Thursday introduced legislation in the House of Commons [official website] that would ban the wearing of burqas [JURIST news archive] or other face coverings in public. The Face Coverings (Regulation) Bill [materials] was introduced by MP Philip Hollobone [official website] in order to regulate the covering of the face in public and, if passed, would prohibit the wearing of both the burqa and the niqab. Hollobone has been outspoken [BBC report] about the wearing of the burqa, indicating that it goes against British values. He also suggested that no one should be allowed to conceal their identity from the public. The bill is scheduled for a second reading in December and would then proceed to the committee phase of the legislative process. Due to the parliamentary process used by the UK, the bill is unlikely to progress beyond the reading phase. Hollobone was selected as part of a random process allowing individual MPs to introduce legislation for consideration. He was selected late in the process, which would decrease the chance that his legislation would move forward.
Many European jurisdictions continue to consider legislation banning the burqa. Last month, the Spanish Senate [official website] approved a motion [press release, in Spanish; JURIST report] calling on the Spanish government to ban the use of full face veils in public places. Also last month, the Barcelona city council [official website, in Catalan] passed a ban [JURIST report] on face coverings in all public places. In May, the French Cabinet approved legislation [JURIST report] that would ban the wearing of the burqa or other face veils in public. Also in May, European Parliament [official website] Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide burqa ban [JURIST report]. In April, the Belgian House of Representatives voted 136-0 to approve [JURIST report] a bill that would ban the burqa and other full face veils in public.
[JURIST] Amnesty International (AI) [official website] on Wednesday criticized the Cuban legal system [report, PDF], stating that the government's restrictions on freedom of expression create a "climate of fear" among journalists and activists. The report claims that the Cuban legal system allows the government to restrict content provided to the media [press release] and to use the restricted content to prosecute hundreds of dissidents. AI said that Cuba's criminal code is vague and can easily be interpreted in a way that infringes fundamental freedoms. The report stated that the laws, which are used to curb legitimate expression of opinion and dissent, are coupled with a corrupt police force and a biased judiciary, leading to several arbitrary arrests and convictions.
The current legal framework and the way in which it is enforced by the authorities seriously limits freedom of expression. ... People continue to face unfounded criminal prosecution, as well as harassment and intimidation by state security and police officials, for expressing and distributing information or opinions critical of the government. Unlawful restrictions on freedom of expression are underpinned by other restrictions on human rights, such as the rights to freedom of association, of peaceful assembly and of movement. Arbitrary detention, interrogations and warnings at police stations, and other forms of temporary arrests are frequently used by the authorities to intimidate individuals critical of the prevailing state system. ... The judiciary is neither independent nor impartial and allows criminal proceedings to be brought against those critical of the government as a mechanism to prevent, deter or punish them for expressing dissenting views. The complicity of the state judicial system in prosecuting government critics, often in summary trials that fail to meet international fair trial standards has a profound chilling effect on freedom of expression, association and peaceful assembly.
The state-run media has a monopoly over broadcast media and the press, as private ownership of mass media is prohibited under the Cuban constitution. To circumvent the private media blockade, many Cubans rely the Internet and new communications technologies to express ideas and opinions. These technologies are less regulated by the government, allowing Cubans to receive and impart information for which they would otherwise be prosecuted. Several small independent press agencies still operate within Cuba illegally but are regularly facing prosecution for news that goes against the government's grain.
The report follows a statement released by AI in March urging the Cuban authorities [JURIST report] to "revoke laws that restrict freedom of expression, assembly and association and to release all dissidents unfairly detained by the authorities." Also in March, the US State Department [official website] criticized Cuba for interfering with the right to privacy in its 2009 Country Reports on Human Rights Practices [materials; JURIST report]. In November, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF; JURIST report] claiming that the Cuban government continued to repress dissidents and violate fundamental civil liberties of Cubans, and resorted to imposing short-term imprisonment measures to elude international critique. According to a February 2009 report by the Cuban Commission on Human Rights and National Reconciliation (CCDHRN) [El Pais backgrounder, in Spanish], the number of political prisoners in Cuba had declined [JURIST report] from 234 in January 2008 to 205, while the number of brief detentions had increased. In 2008, Cuba was ranked 170th in the eighth annual Worldwide Index of Press Freedom [JURIST report] issued by Reporters Without Borders (RWB) [advocacy website].
[JURIST] The US House of Representatives [official website] on Wednesday voted 237 to 192 to approve the final version of financial reform legislation [HR 4173 materials], which focuses on increasing regulation in the financial sector following the recent economic crisis [JURIST news archive]. The House and Senate [official website] reached an agreement [JURIST report] on the final version of the bill last week, but were forced to re-open negotiations [Reuters report] this week following the death of Democratic Senator Robert Byrd (WV) [official website] in order to ensure the bill's final passage in the Senate. The biggest concession made in order to gain Republican support for the bill was the removal of a $17.9 billion tax on large financial institutions that was meant to cover the bill's costs. The final bill creates a new regulatory council to monitor financial institutions in order to prevent the companies from becoming "too big to fail." It also gives the Federal Reserve [official website] the power to supervise the largest financial companies and report to the government any risks the firms may pose to the economy at large. Additionally, a new consumer protection division will be established within the Federal Reserve to enforce rules against certain business practices like abusive mortgage lending and some credit card practices. As a final protection against future bailouts, the government will have the ability to seize and liquidate failing financial institutions before their collapse can have an adverse affect on the entire economy. The so-called "Volcker Rule" is included in the final bill, but instead of prohibiting banks from owning hedge funds, banks will be permitted to invest up to 3 percent of their capital into hedge funds or private equity funds. The final bill also includes regulation of some derivatives, requiring that they be bought and sold through clearinghouses or exchanges. US President Barack Obama [official website] praised the passage of the bill [press release], as well as its content, stating:
It will put in place the strongest consumer financial protections in history, curbing abuses by banks, mortgage and credit card companies and giving their customers the information they need to make responsible financial decisions. It will make our financial system more transparent, so that complex transactions that escaped scrutiny in the past will now be done in the light of day. And it will put an end to the idea that any financial firm is too big to fail, and therefore entitled to taxpayer bailouts.
The Senate is expected to vote on the final bill later this month.
The Senate approved its version of the financial reform bill in May, after the House passed its version [JURIST reports] in December. The Senate Banking Committee [official website] proposed a bill [text, PDF; JURIST report] in 2009 that was met with resistance and resulted in the committee's development of the bill ultimately passed by the Senate. One provision in the bill that has been the source of much debate is the creation of a consumer protection agency. The House Financial Services Committee [official website] had approved a bill to create the agency in October, after originally delaying [JURIST reports] it at the behest of financial industry leaders last July. The creation of the agency is a key step in achieving the Obama administration's stated goal of tightening financial industry regulations. Last June, the administration proposed a broad series of regulatory reforms [press release; JURIST report] aimed at restoring confidence in the US financial system.
[JURIST] The UN Security Council [official website] on Tuesday unanimously passed a resolution [press release] extending the terms of office for the judges [official profiles] of the International Criminal Tribunal of the former Yugoslavia (ICTY) [official website]. Resolution 1931 [text] was welcomed by the ICTY, which has been struggling with staff retention, causing a "significant slippage" in the tribunal's trial schedule. ICTY President Judge Patrick Robinson [official profile] addressed the Security Council on the importance of this issue, stating that "a failure to take action immediately on the rate of staff attrition at the Tribunal will have profound effects on the ability of the Tribunal to complete its mandate as expeditiously as possible." The new resolution will extend the terms of office for five appeals judges to the end of 2012, and the terms of eight permanent trial and 10 ad litem judges until the end of 2011, or until the completion of the caseload if sooner. The latest completion strategy report estimates that all first instance trials will be completed by mid-2012 with the exception of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive], which is expected to finish in late 2012. Most appellate work is scheduled to be completed by early 2014.
In March, UN Secretary-General Ban Ki-moon [official website] said that the ICTY will continue to operate [JURIST report] beyond its originally planned end date in part to apprehend the two indictees still at large, former Bosnian Serb Commander Ratko Mladic [case materials; JURIST news archive] and former Croatian Serb leader Goran Hadzic [case materials], who both face a significant number of charges. In May, the ICTY amended the indictment of Mladic in order to help speed up the court proceedings once he is captured. Mladic's family members, who have not seen or heard from Mladic in seven years, recently asked for the former commander to be declared dead by the Serbian government [JURIST report]. Mladic is wanted on 11 counts of genocide, crimes against humanity, and violations of the laws and customs of war during the 1992-1995 Bosnian civil war [JURIST news archive]. Hadzic, who was last seen fleeing his home [JURIST report] in Serbia in 2004, faces crimes against humanity charges for killings of non-Serbs and for abuses in Croatian prison camps between 1991 and 1995.
[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Wednesday convicted [judgment summary, PDF; press release] former businessman Yussuf Munyakazi [case materials] on charges of genocide and extermination as a crime against humanity. The court found that Munyakazi was liable for the deaths of more than 5,000 Tutsi civilians during the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive] and that he "intended to destroy the Tutsi ethnic group in whole or in part." Munyakazi had also been charged with complicity in genocide, but the court found that there was not enough evidence to convict him on the charges related to the distribution of weapons and the providing of material support to the militia involved in the killings. Rwandan authorities had sought to have Munyakazi transferred to Rwanda for trial, but that request and the subsequent appeal were both denied [JURIST report] based on concerns that the judiciary in Rwanda may not be fully independent and immune from outside pressure. Rwandan Prosecutor General Martin Ngoga criticized the decision [JURIST report] and insisted that Rwanda's judicial system was fully independent and capable of guaranteeing a fair trial. Munyakazi was sentenced to 25 years in prison and will remain in custody at the UN Detention Facility in Arusha, Tanzania, pending transfer to the country where he will serve out his sentence.
The ICTR continues its work to prosecute those most responsible for the Rwandan genocide, in which nearly 800,000 people, primarily Tutsis, were killed. Last month, the ICTR Appeals Chamber heard arguments in an appeal [JURIST report] filed on behalf of former Rwandan Armed Forces Colonel Tharcisse Renzaho [case materials]. Renzaho was sentenced to life in prison [judgment, PDF; JURIST report] last year after he was convicted of crimes relating to the genocide in Rwanda. Also last month, the Appeals Chamber heard arguments [JURIST report] on behalf of Emmanuel Rukundo, a priest convicted of genocide and other charges last year. In March, the Appeals Chamber affirmed [JURIST report] the genocide conviction of popular Rwandan singer-songwriter Simon Bikindi. Also in March, the Appeals Chamber reversed several convictions against Rwandan district attorney Simeon Nchamihigo including murder and extermination as crimes against humanity and three counts of genocide.
[JURIST] The European Court of Human Rights (ECHR) [official website] on Wednesday held a Grand Chamber hearing [press release] regarding its decision in Lautsi v. Italy [judgment, in French; JURIST report], where the ECHR found an Italian school's display of the crucifix in classrooms violated Articles 2 and 9 of the European Convention on Human Rights [text, PDF], regarding religious and educational freedoms. Italy appealed the decision, arguing that the crucifix is a part of the country's national identity [Reuters report]. Ten other countries—Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, San Marino, Romania and Russia—joined Italy in its appeal. One lawyer argued the ban would force countries to remove religious references from their flags and national anthems. The 19-judge chamber is expected to announce its ruling in September or October [AP report].
[JURIST] Newly-inaugurated Philippines President Benigno Aquino [campaign website, in Tagalog; BBC profile] announced Tuesday that his administration will set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations. The commission plans to look into accusations [AFP report] that former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] and members of her administration rigged the 2004 presidential election, misused government funds and profited from government contracts. Aquino said that other agencies will assist the commission [Reuters report] in its investigation, including the country's Department of Justice [official website]. Aquino's announcement prompted a call for the president to issue an executive order [ABS-CBN report] to make the commission's creation official and clear up any ambiguity regarding the commission's authority. Aquino appointed former Supreme Court [official website] chief justice Hilario Davide [UN profile] to head the commission.
Arroyo was elected to the lower house of parliament after receiving permission to run for the seat [JURIST report] in April despite protests that her presidency gave her an unfair advantage. In March, Aquino and other presidential candidates criticized as "unjust" a Supreme Court ruling that allowed Arroyo to appoint a replacement for the retiring chief justice [JURIST report], who planned to step down a week after the May presidential elections. Arroyo declared martial law [JURIST report] in December for the first time in 23 years in the wake of a massacre in the Maguindanao province that left 57 dead. In February, prosecutors charged 197 people with murder [JURIST report] in connection with the massacre. A Manila trial court ordered the arrest of 189 more suspects [JURIST report] in March. Eleven policemen and militia members pleaded not guilty [JURIST report] to the charges in April.
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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible, ad-free format.
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Legal news from Thursday, July 1, 2010
