August 2010 Archives


Rights group calls for amendment of Rwanda 'genocide ideology' laws
Hillary Stemple on August 31, 2010 2:56 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Tuesday urged the Rwandan government [report, PDF; press release] to review its "genocide ideology" and "sectarianism" laws, which they say are being used to stifle freedom of speech and expression in the country. The laws were first enacted following the 1994 Rwandan genocide [HRW backgrounder; JURIST news archives], where hate speech and propaganda played a role in inciting violence against the Tutsi minority. In the report, AI acknowledged that prohibiting hate speech is a legitimate goal for the Rwandan government, but called the laws "vague" and "sweeping" and warned that they are being used to deliberately violate human rights. AI stated that legal experts and judges have difficulty interpreting the laws and that allegations of genocide ideology have been made against opposition political candidates and news organizations, including the BBC. They also contend that the laws are being used to settle local disputes, with children as young as 12 being punished for violating the laws. AI applauded efforts by the Rwandan government to improve their judicial system and to cooperate with the International Criminal Tribunal for Rwanda (ICTR) [official website], but cautioned that, without reform of the laws, concerns will remain about the judicial system. The Rwandan government announced in April that they will review the laws, although no steps have currently been taken to amend the laws.

In their report, AI cited the arrest of US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] under a related law as an example of the misapplication of the country's genocide laws. Rwandan police arrested Erlinder [JURIST report] in May on charges that he denied the 1994 genocide. 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 initially 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 report]. He was released from custody and returned to the US [JURIST reports] in June after being detained for more than 30 days.




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Tasmania approves law recognizing all foreign and national same-sex marriages
Sarah Miley on August 31, 2010 2:46 PM ET

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[JURIST] The lower house of the Tasmanian Parliament [official website] on Tuesday overwhelmingly approved an amendment to the Relationships Act of 2003 [text], recognizing same-sex marriages [JURIST news archive] and civil unions registered in foreign countries and other Australian states. The amendment was aimed at ending discrimination against same-sex couples and was supported by all but three representatives [ABC report] of the 25-member house. Tasmanian Attorney-General Lara Giddings [official profile] praised the amendment's passage, calling it a small but important step for same-sex couples who want to transfer their foreign marriage license to Tasmania.

Several countries have recently addressed the issue of recognition and legalization of same-sex marriage. Earlier this month, the Supreme Court of Mexico [official website, in Spanish] ruled 9-2 that same-sex marriages performed in Mexico City must be recognized nationwide [JURIST report]. Additionally, a US federal judge ruled that the California state ban on same-sex marriage violates the US Constitution [JURIST report]. Last month, Argentine President Cristina Fernandez [official website, in Spanish] signed a same-sex marriage bill into law after the bill was approved by the legislature [JURIST reports], making Argentina the first Latin American country to legalize same-sex marriage nationwide. Same-sex marriage is currently recognized in several US jurisdictions, and nationwide in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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India high court to reconsider Bhopal convictions
Hillary Stemple on August 31, 2010 12:47 PM ET

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[JURIST] The Indian Supreme Court [official website] announced [text, PDF] Tuesday that it will reconsider a 1996 ruling allowing former employees of US chemical producer Union Carbide [corporate website] accused in relation to the 1984 Bhopal chemical spill disaster [BBC backgrounder] to be charged with negligence instead of culpable homicide. Seven men were convicted [JURIST report] in June on charges of "death by negligence" and sentenced to two years in prison and ordered to pay USD $2,100. The convictions were the first related to the Bhopal disaster in which nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled. The sentences of the men have been criticized as being too lenient [Financial Times report] and the Indian government has faced increasing pressure to bring charges against former executives of Union Carbide. If the convictions were to be overturned and the men were to be tried on charges of culpable homicide, they could face sentences of up to 10 years in prison.

Last month, the Indian government apologized for improperly dumping waste [JURIST report] related to the Bhopal incident. The apology came one month after cabinet ministers announced the government would consider increasing compensation for victims of the disaster [JURIST report] and seek the extradition of the former chairman of Union Carbide so he could stand trial in India. A settlement was reached between Union Carbide and the Indian government in 1989 with the company paying $470 million to end its liability. The cabinet members, however, indicated the government was willing to revisit the settlement and possibly seek further compensation from Union Carbide. Dow Chemicals [corporate website], which purchased Union Carbide in 1999, contends that the settlement ended all possible claims against the company.




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Administrative law judges facing increase in violent threats: report
Carrie Schimizzi on August 31, 2010 9:02 AM ET

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[JURIST] Federal judges responsible for handling Social Security disability claims and immigration hearings are petitioning for increased security measures after data released Monday shows they have been the targets of numerous threats [press release, PDF]. According to the report released by the Association of Administrative Law Judges (AALJ) and the National Association of Immigration Judges (NAIJ) [official websites], security risks for federal employees handling these "emotional" cases have increased over the past five years. Citing a backlog in the number of hearings that "cause anger and anxiety," the data cites 28 violent threats on Social Security offices and nine threats on disability claims judges between March and August 2009. According to the report, an additional 21 threats were reported between September 2009 and February 2010:
Judges have reported threatening letters and emails directed at them and their families, chairs thrown at them, and their robes being grabbed while on the bench. One judge had her automobile's brake lines cut and one respondent in an immigration hearing attempted suicide in front of the judge.
The report lists a number of physical changes and personnel improvements that the associationshope will improve security. The needed improvements include the addition of railings to hearing rooms, peep holes in doors so that security guards can see into the courtrooms, separate entrances for judges and claimants and increased security risk training for courtroom personnel.

Threats against judges, US attorneys and assistant US attorneys have more than doubled over the last six years, according to a report [text, PDF] released [JURIST report] in January by the US Department of Justice. The report found that judges, US attorneys and assistant US attorneys received 1,278 threats in 2008, compared to 592 in 2003. Additionally, the report found that threats are not always consistently and promptly reported. Earlier this month, a right-wing blogger from New Jersey was convicted [JURIST report] by a federal jury for death threats made on his blog against federal judges who upheld a gun control law. In December 2008, Brian Nichols was sentenced to seven life terms to be served consecutively in addition to other punishment for shooting and killing a superior court judge [JURIST reports] and other personnel in an Atlanta courthouse in an attempted escape. In April 2008, Ohio resident David Tuason was indicted for allegedly threatening to blow up the US Supreme Court building [JURIST report] and attack black men, including Supreme Court Justice Clarence Thomas. Other death threats [JURIST report] have been reported in recent years against Supreme Court Justice Ruth Bader Ginsburg and now-retired Justice Sandra Day O'Connor.




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Rights groups file suit over US assassination order for suspected terrorist
Zach Zagger on August 31, 2010 8:12 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] filed a lawsuit Monday challenging [complaint, PDF] the US government's authority to conduct "targeted killings" against suspected terrorists. The ACLU and CCR allege that US citizen Anwar al-Awlaqi [NYT profile], suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen, was placed on "government kill lists." The groups are bringing the suit on his behalf through his father Nasser al-Awlaqi, claiming targeted killings in such instances constitute a process of illegal extrajudicial killings because "outside of armed conflict, both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury." They claim that the "kill lists" violate both Fourth Amendment protection from illegal search and seizure and the Fifth Amendment [Cornell LII backgrounders] right to not be deprived of life without due process and due process notice requirements because of the secretive nature of the process. They seek a judicial order determining that such judicial killings clearly violate the Constitution and an order requiring the government to "disclose the criteria that are used in determining whether the government will carry out the targeted killing of a U.S. citizen."

Earlier this month, the ACLU and the CCR obtained a specially designated global terrorist (SDGT) license that enables them to represent Anwar al-Awlaqi, but announced they are still pursuing a legal challenge [JURIST reports] to the licensing scheme. The Obama administration has defended [JURIST report] its use of targeted killings, specifically those made by unmanned predator drone strikes [JURIST news archive]. State Department Legal Adviser [official website] Harold Koh [academic profile] has said the drones "comply with all applicable law" because they target only military targets and enable minimal damage to civilians and civilian structures. Last October, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] noted that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report]. Alston said, "[t]he onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons." Alston criticized the US policy in a report to the UN General Assembly's human rights committee that was presented as part of a larger demand that no state be free from accountability.




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Sri Lanka cabinet approves constitutional changes to remove presidential term limits
Brian Jackson on August 30, 2010 2:09 PM ET

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[JURIST] The Sri Lankan cabinet on Monday approved proposed constitutional reforms [press release] that would permit current President Mahinda Rajapaksa [official website] to seek an unlimited number of terms in office. The current number of terms for the executive, codified within Chapter VII of the Sri Lankan Constitution [materials], is limited to two. The proposed amendment now moves to the legislature, where two-thirds of Parliament [official website] will have to approve the change. The amendment is scheduled to be presented in Parliament [press release, text] on September 8, and it is widely believed that Rajapaksa enjoys enough support [Xinhua report] in that body to allow the amendment to easily pass. Critics of the president say he is abusing his power [Taiwan News report] and attempting to "create a family dynasty". The Sri Lankan Supreme Court [official website] must also review the amendment to make sure it is not inconsistent with any other portion of the constitution.

While the proposed amendment would allow Rajapaksa to make a bid for an unlimited number of terms in office, his second term has not yet begun, though he easily achieved victory [NYT report] in January elections. Rajapaksa is a consistently popular figure within Sri Lanka, primarily for his efforts in defeating the Tamil Tiger [JURIST news archive] rebels within Sri Lanka. That victory was not without cost, however, as numerous questions have been raised about the government's actions during the conflict, including the treatment of prisoners. Earlier this month, the Sri Lankan defense minister defended [JURIST report] the government's actions during the conflict. In July, UN Secretary-General Ban Ki-moon called on the Sri Lankan Government [JURIST report] to improve conditions around UN offices in Colombo after a UN announcement [JURIST report] of the formation of an international panel to investigate human rights abuses during the war resulted in days of pro-government protests [JURIST report] near UN offices.




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Congo rebel leader Bemba claims lack of funds precludes fair trial
Matt Glenn on August 30, 2010 2:07 PM ET

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[JURIST] Defense lawyers for Democratic Republic of Congo (DRC) former vice president Jean-Pierre Bemba [case materials; JURIST news archive] argued before the International Criminal Court (ICC) [official website] Monday that Bemba lacks the financial resources to ensure a fair trial over war crimes he allegedly committed in 2002 and 2003. Bemba's lawyers claim [AP report] that prosecutors have seized all of Bemba's assets and that a loan from the court's registry is insufficient to cover legal fees and other costs. The court refused to declare Bemba indigent, which would have forced the court to fund Bemba's defense. Prosecutors hope to begin Bemba's trial in October or November.

In April, Bemba's lawyers asked the court to drop the charges [JURIST report], arguing that Bremba was denied due process and the charges are illegal. In December, the ICC ordered [text, PDF] Bemba to remain in custody [JURIST report] until his trial. The ruling reversed a decision [JURIST report] issued last August ordering Bemba's conditional release. The order for release was opposed by ICC prosecutors who appealed [JURIST report] the original decision. The ICC ordered Bemba to stand trial [JURIST report] for war crimes allegedly committed in the Central African Republic (CAR) [BBC backgrounder]. Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a warrant for his arrest for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred [JURIST report] to the ICC in July 2008.




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Forthcoming UN DRC report suggests genocide by Rwanda forces
Ann Riley on August 30, 2010 1:57 PM ET

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[JURIST] A forthcoming UN report claims that troops from Rwanda and allied rebels committed crimes in the Democratic Republic of Congo (DRC) [JURIST news archives] that could be classified as genocide if proven by the appropriate court, according to media reports. The draft report, first publicized by French newspaper Le Monde [media website, in French] last week, documents the extreme violence in the DRC from 1993-2003, alleging that tens of thousands of Hutus were killed by Rwandan troops [Le Monde report, in French] during the Congo civil war [GlobalSecurity backgrounder]. Following the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive], in which more than 800,000 primarily Tutsi people were killed in a span of 100 days, Hutu militias and civilians fled to neighboring Congo, then known as Zaire. According to the New York Times, the report documents systematic killings [NYT report] by the Tutsi-dominated Rwandan army with the assistance of the Alliance of Democratic Forces for the Liberation of Congo (AFDL) rebel movement, which may legally amount to genocide. While Rwanda and the DRC have continually asserted that Hutu militias were attacked following the 1994 genocide, the report alleges that civilian Congolese Hutus were also the target of violence and killings. Rwandan Justice Minister Tharcisse Karagurama [official website] rejected the report [BBC report], saying that it had no basis.

In April, the Rwandan Supreme Court [official website] ruled that the plea for release by DRC rebel leader Laurent Nkunda [BBC profile; JURIST news archive] can only be heard by a military court [JURIST report]. According to Nkunda's counsel, he is being held illegally without charge. In 2009, a Rwandan court rejected [JURIST report] a similar lawsuit seeking Nkunda's release from custody. Nkunda was apprehended by Rwandan authorities last January near the DRC border after a joint DRC-Rwandan military operation to capture him and root out Rwandan Hutu rebels operating in the DRC. The DRC government called on Rwanda to extradite Nkunda to DRC where he would face charges for atrocities allegedly committed by forces under his command. In 2006, the International Court of Justice (ICJ) [official website] ruled [JURIST report] that it does not have jurisdiction over a case filed by the DRC against Rwanda on charges of aggression and human rights abuses stemming from the DRC civil war. The ICJ asserted that Rwanda has not accepted UN conventions against human rights crimes like torture and degrading behavior, and therefore the ICJ could not rule [ICJ jurisdiction rules] on the charges upon which Congo based its case. Congo filed the suit [ICJ press release] against Rwanda in 2002, alleging armed aggression, mass slaughter, rape, arbitrary detentions, systematic looting and assassinations, while asking Rwanda to withdraw its troops. Public hearings [ICJ docket; JURIST report] began in the case in 2005.




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Arizona governor asks State Department to drop immigration law from UN rights report
Brian Jackson on August 30, 2010 1:28 PM ET

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[JURIST] Arizona Governor Jan Brewer [official website] on Friday called on Secretary of State Hillary Clinton to remove any mention of Arizona [letter, PDF] and its passage of SB 1070 [JURIST news archive] from a human rights report [text, PDF; JURIST report] issued by the State Department. The report, submitted to the UN High Commissioner for Human Rights [official website] as part of a universal review, discussed the passage and current injunction of portions of SB 1070 within a section entitled, "A commitment to values in engagements across our borders." Brewer's sternly-worded letter called inclusion of any mention of SB 1070 "offensive" in light of the membership of the UN Human Rights Council (UNHRC) [official website], including Cuba and Libya. Brewer continued:
The idea of our own American government submitting the duly enacted laws of a State of the United States to 'review' by the United Nations is internationalism run amok and unconstitutional. Human rights as guaranteed by the United States and Arizona Constitutions are expressly protected in S.B. 1070 and defended vigorously by my Administration.
Brewer has asked that the paragraph mentioning SB 1070 be stricken from the report and that in its place, the report include a comparison of US immigration laws to the laws of those members of the UNHRC that will review the report. There has not been an official response from Clinton or the State Department.

Arizona's new immigration law has been the model for proposed laws in a number of other states. Earlier this month, Florida Attorney General Bill McCollum proposed a similar law for his state [JURIST report], and Virginia's Attorney General issued an opinion that police within his state may inquire as to the immigration status [JURIST report] of those whom they stop or arrest. In late July, a federal district judge enjoined many provisions of the Arizona law [JURIST report], and efforts by the state to have review of that decision expedited to the Court of Appeals for the Ninth Circuit were denied by that court [JURIST report]. The Justice Department filed its complaint in early July [JURIST report], alleging that Arizona's attempt to pass immigration laws is preempted by federal law, and thus runs afoul of the Supremacy Clause of the US Constitution.




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Iran prosecutor reportedly suspended over detainee deaths
Carrie Schimizzi on August 30, 2010 10:52 AM ET

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[JURIST] Tehran prosecutor Saeed Mortazavi has been named by multiple Iranian news sources as one of three top judicial officials who were suspended in connection with the torture deaths of three detained protesters, multiple Iranian media outlets reported [AFP report] Monday. The suspensions were announced last week [JURIST report], but the names of the officials had been withheld. According to the media reports, the other two officials are judges whose identities are still unknown. The suspension will strip Mortazavi of his judicial immunity and clear the way for his prosecution. An Iranian parliamentary inquiry had previously found that Mortazavi was responsible for the deaths [JURIST report] of Mohammad Kamrani, Amir Javadi-far and Mohsen Ruholamini, who were tortured and beaten to death at the Kahrizak detention center after being arrested during anti-government protests that followed last year's disputed presidential election [JURIST news archive].

In June, an Iranian military court sentenced two men to death [JURIST report] by hanging for the killings. Nine others were sentenced to prison terms, and one suspect was acquitted. The defendants, whose trial began [JURIST report] in March, included 11 policemen and one civilian. Observers have accused [CNN report] the Iranian government of conducting the trial as a mere political move. The Iranian government was sharply criticized by both pro-democracy leaders and government supporters for the death of the protesters. Authorities initially claimed that the three men had died from meningitis, holding that the torture accusations were the propaganda of the opposition party. This viewpoint began to shift in August when government officials spoke out [JURIST report] against the abuse of protesters detained in Iranian prisons, and Supreme Leader Ayatollah Ali Khamenei [official website] ordered the closure of Kahrizak prison as a result.




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Annan questions Kenya's ICC commitment after al-Bashir visit
Carrie Schimizzi on August 30, 2010 9:47 AM ET

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[JURIST] Former UN secretary-general Kofi Annan [official profile; JURIST news archive] on Sunday urged Kenya to reaffirm its commitment [press release] to the International Criminal Court (ICC) [official website] after it welcomed Sudanese President Omar al-Bashir [case materials; JURIST news archive] to a celebration for the country's adoption of a new constitution [JURIST report] last week. In his statement, Annan expressed his "surprise" at the presence of al-Bashir and called on Kenya to reaffirm its cooperation with the ICC. In a statement [press release] released by Kenya's Ministry of Foreign Affairs [official website], the country defended its decision to extend the invitation to al-Bashir and expressed its willingness to cooperate with the ICC:
Kenya wishes to reaffirm her commitment to co-operate with the ICC, contrary to the statements of the ICC and some UN Security Council Members, some of who have no obligation to the ICC. Indeed, in the recent past, Kenya has demonstrated good faith and co-operated fully with the ICC on the situation in Darfur thereby contributing to the overall objective of combating impunity and bringing justice to the people of Darfur. The extent of that support and assistance is well within the knowledge of ICC.
In addition to Annan's criticism, the Council of the European Union [statement, PDF] and US President Barack Obama [statement] also expressed disappointment in Kenya's decision to invite the Sudanese president, who is wanted by the ICC for war crimes and genocide.

On Friday, the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute over al-Bashir's visit. Last month, al-Bashir also visited Chad, another member state. The ICC also reported Chad [decision, PDF] Friday to the Security Council and Assembly of States Parties. In July, the Pre-Trial Chamber I of the ICC charged al-Bashir [JURIST report; JURIST news archive] with three counts of genocide [warrant, PDF] in relation to the Darfur conflict [BBC backgrounder]. The chamber found that there were reasonable grounds to conclude that Bashir had committed genocide against the Fur, Masalit and Zaghawa ethnic groups. The charges included "genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction." The genocide charges were added to the seven counts of war crimes and crimes against humanity that were filed against Bashir [JURIST report] in March 2009. The warrant has been controversial, with Egypt, Sudan, the African Union and others calling for the proceedings against Bashir to be delayed, and African Union leaders agreeing [JURIST reports] not to cooperate with the warrant.




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Microsoft appeals patent infringement case to Supreme Court
Erin Bock on August 30, 2010 8:42 AM ET

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[JURIST] Microsoft Corporation [corporate website; JURIST news archive] on Friday asked the US Supreme Court [official website] to reconsider a ruling [cert. petition, PDF] of the US District Court for the Eastern District of Texas [official website] finding that the company committed patent infringement [JURIST report] and awarding Canadian-based software company i4i [corporate website] $290 million dollars in damages. i4i alleged that Microsoft willfully infringed on patents it held on XML technology [i4i litigation database], which Microsoft used extensively in Microsoft Word 2007 and 2003 [Reuters report]. In addition to paying $290 million in damages, Microsoft was enjoined from selling the Microsoft Word 2007 software that included the patent infringing code. The US Court of Appeals for the Federal Circuit [official website] affirmed the district court decision [JURIST report] in December and denied Microsoft's petition for rehearing in March. Microsoft has removed the contested code from its software, but alleges that the i4i patent is invalid and that the lower courts' rulings depart from Supreme Court precedent [WSJ report].

Microsoft has been a party to many legal proceedings regarding its software in recent years. In April, a Shanghai court ruled that a Chinese insurance company was liable to the software company [JURIST report] for using illegal copies of its products and ordered the insurance company to pay USD $318,000 in damages. In November, another Chinese court ruled against Microsoft in a patent infringement case [JURIST report], finding the company infringed upon the patent rights of Zhongyi Electronic by using Chinese fonts created by the company in programs such as Windows 1998, 2000, 2003 and XP when they were only authorized for use in its Windows 1995 program. In December, the European Commission (EC) [official website] dropped antitrust charges against Microsoft [JURIST report] after the company agreed to offer consumers a choice of web browsers [JURIST report]. The EC accused Microsoft of violating fair competition rules by bundling its Internet Explorer browser with its Windows operating system.




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Federal appeals court upholds decision finding no link between vaccines and autism
Erin Bock on August 30, 2010 7:15 AM ET

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[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Friday affirmed [opinion, PDF] a decision issued last year by the US Court of Federal Claims [official website] finding insufficient evidence [JURIST report] to establish a link between childhood vaccines and autism in three test cases. The decision focused on the case of 15-year-old Michelle Cedillo, who received the MMR vaccine [NIH backgrounder] when she was 15 months old and was subsequently diagnosed with autism and various gastrointestinal disorders. Michelle's parents alleged that Thimerosal [FDA backgrounder], the mercury-based preservative found in Michelle's MMR vaccine, damaged her immune system, rendering her unable to defend against the measles virus contained in the vaccine, which spread throughout her body and caused her current problems. The family sought compensation under the no-fault National Vaccine Injury Compensation Program [HRSA backgrounder]. The court found petitioners were unable to establish that the MMR vaccine was a substantial factor in bringing about Michelle's injuries and that the lower court did not err in placing this burden on petitioners. The court also affirmed the lower court's finding that the Department of Health and Human Services (HHS) [official website] experts proved petitioners' laboratory results establishing the connection between the vaccines and illnesses were "severely flawed." The court also found petitioners' argument that the lower court failed to consider pertinent testimony to be "unpersuasive."

In March, the US Federal Court of Claims determined that Thimerosal did not cause childhood autism [JURIST report] in three compensation actions. The special master found that the petitioners failed to present "a scientifically sound theory" and cited evidence that was "biologically implausible." Thimerosal has also been involved in other health-related debates. In 2005, HHS officials argued that state laws prohibiting the chemical could impede efforts [JURIST report] to fight an avian flu pandemic in the event of an outbreak. Most doctors believe Thimerosal is safe and does not affect the body in the same manner as mercury found in pollutants, but activist groups disagree claiming use of the preservative can be linked to neurological diseases including autism. Officials argue that mercury-free vaccines can only be packaged in individual doses, which could pose a major problem in the event of a pandemic requiring production of large doses of vaccinations.




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Obama administration not bringing charges against alleged USS Cole bomber: WP
Dwyer Arce on August 29, 2010 10:47 AM ET

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[JURIST] The Obama administration has halted plans to prosecute Guantanamo Bay [JURIST news archive] detainee Abd al-Rahim al-Nashiri [NYT profile] for his alleged involvement in the 2000 USS Cole attack [JURIST news archive], according to a Washington Post report [text] Thursday. According to the report, the intention not to pursue charges was revealed in a motion filed with the US Court of Appeals for the District of Columbia Circuit by the Department of Justice (DOJ) [official websites]. This intention was revealed by a single sentence in the filing, which states that charges against al-Nashiri are not pending or being considered. Reacting to the report, the American Civil Liberties Union (ACLU) [advocacy website] stated that the decision not to prosecute al-Nashiri in the near future demonstrates the "inherent unfairness of the military commissions," [press release] continuing:
The current state of the al-Nashiri trial underscores the fact that the military commissions system is designed to get convictions - not to provide fair trials that result in real justice. In the military commissions, the prosecution has all the power and the money, while the defense remains severely under-resourced. While the prosecution is getting paid to perfect its case against al-Nashiri, his lone defense attorney has been denied much-needed resources and all but blocked from preparing a defense. This is one more reason the military commissions should be shut down for good, and terrorism suspects should be tried in federal courts that guarantee the right to a robust defense and uphold the rule of law.
The Defense Department refuted the assertion that the government was not pursuing charges against al-Nashiri Thursday, stating that there was an active investigation ongoing against him.

In February 2009, the Pentagon formally dropped charges [JURIST report] against al-Nashiri. The order ended the last active military commission trial, complying with President Barack Obama's executive order mandating a reprieve of the prosecution [JURIST report] of all cases at Guantanamo. Al-Nashiri was accused of terrorism, attempted murder and providing material support to terrorism for his alleged role in planning the USS Cole attack. He was charged in June 2008 [JURIST report] under the Military Commissions Act of 2006 [text, PDF]. He would have faced the death penalty if found guilty at his military tribunal [JURIST news archive]. In 2004, a Yemeni security court charged al-Nashiri in absentia [JURIST report] in connection with the attack, saying he belonged to al Qaeda [CFR backgrounder]. In 2005, a Yemeni appeals court upheld a death sentence [JURIST reports] against him.




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Federal judge allows Ohio death penalty challenge to proceed
Dwyer Arce on August 29, 2010 9:18 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Friday denied a motion to dismiss [order text] a challenge to the constitutionality of a second execution attempt filed by death row inmate Romell Broom [JURIST news archive]. The challenge was filed in September following a failed execution attempt, in which officials failed to find a vein to administer the injection over the course of two hours. The challenge, filed as a 42 USC § 1983 [text] action, alleges that the failed attempt and any future attempts would violate the Eighth Amendment prohibition against cruel and unusual punishment, the Fifth Amendment prohibition against double jeopardy, the Sixth Amendment right to counsel and the Fourteenth Amendment requirements of due process and equal protection [Cornell LII backgrounders]. In addressing the state's motion to dismiss, Judge Gregory Frost found that the claims regarding cruel and unusual punishment, equal protection and right to counsel should be allowed to proceed. In dismissing Broom's double jeopardy claims, Frost found:
In this instance, "§ 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements." The end result is that Plaintiff's claims "fall within the 'core' of habeas corpus and are thus not cognizable when brought pursuant to § 1983." This means that Plaintiff's Fifth Amendment and Eighth Amendment no-multiple-attempts challenges are not properly before this Court. Defendants concede that habeas presents the proper vehicle to address the constitutional issues arising from the failed execution attempt and Ohio's intent to try again, and they are correct. The proper mechanism in which to assert both claims is a habeas corpus action and not under § 1983.
Frost also dismissed Broom's claims that the procedure used in his execution, as well as the revised procedure implemented following his failed execution, were unconstitutional.

In September, Frost delayed [JURIST report] Broom's execution shortly after the failed attempt. Frost issued the order following claims that the multiple attempts to find a vein during the two-hour procedure constituted cruel and unusual punishment and violated state law [ORC 2949.22 text], which requires lethal injections to "quickly and painlessly cause death." Earlier that month, the US Court of Appeals for the Sixth Circuit rejected [opinion, PDF] Broom's challenge to the method of execution on timeliness grounds. The same court denied [opinion text] Broom's request for habeas relief in 2006. Broom was convicted of the 1984 rape and murder of a 14-year-old girl. Following Broom's failed execution, Ohio became the first state to adopt a single-drug protocol [JURIST report] following a review of its lethal injection practices in September. The new protocol consists of the intravenous injection of a single anesthetic, and provides for the intramuscular injection of two other drugs if an appropriate vein cannot be found.




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Somalia piracy suspect pleads guilty in US court
Daniel Makosky on August 28, 2010 4:26 PM ET

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[JURIST] Somali citizen Jama Idle Ibrahim pleaded guilty [press release] Friday to several charges in the US District Court for the Eastern District of Virginia [official website] for his role in the April attack on the USS Ashland in the Gulf of Aden. Ibrahim, originally charged with piracy [JURIST news archive], reached an agreement with prosecutors to plead guilty to charges of attacking to plunder a vessel, committing an act of violence against persons on a vessel and the use of a firearm in the commission of a crime of violence. The charges carry a maximum of life imprisonment, though the terms of the plea arrangement call for a 30-year sentence. The sentencing hearing will be conducted November 29. Also Friday, the US Attorney's Office for the District of Columbia [official website] filed additional charges against Ibrahim for conspiracy to commit piracy and use of a firearm during a violent crime for his alleged involvement in an attack on the M/V CEC Future.

Piracy charges against Ibrahim and five other defendants were dismissed [JURIST report] earlier this month when federal Judge Raymond Jackson ruled that the definition of piracy as defined by the law of nations under 18 USC § 1651 [text] does not include violence or aggression committed on the high seas. He rejected the government's argument for an expanded reading of the statute, stating the government's definition would, "subject defendants to an enormously broad standard under a novel construction of the statute that has never been applied under United States law, and would in fact be contrary to Supreme Court case law." Several other suspected Somali pirates have faced charges in federal court this year. A Somali man charged with piracy pleaded guilty [JURIST report] in May to charges of hijacking, kidnapping and hostage-taking related to an April 2009 attack on the US container ship Maersk Alabama [GlobalSecurity backgrounder]. Somali officials have criticized [BBC report] the US for exercising jurisdiction over suspected pirates, insisting that piracy prosecutions should be conducted by an international tribunal. They have also asked that Somali pirate suspects be returned to Somalia, which lacks a functioning central government to address the piracy problem. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Microsoft co-founder sues 11 major web companies over patents
Daniel Makosky on August 28, 2010 2:05 PM ET

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[JURIST] Microsoft co-founder Paul Allen filed suit [complaint, PDF] Friday against Apple, eBay, Google [corporate websites] and eight other corporations in the US District Court for the Western District of Washington [official website], claiming the infringement of four patents related to website navigation and electronic information presentation. According to the complaint, which also names AOL, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube [corporate websites], the companies misappropriated technologies patented by Allen's now defunct Interval Research Corporation and currently held by Interval Licensing, LLC. The suit charges that the 11 defendants infringed on a patent that recommends like content to users based on real-time viewing data, while all but Facebook violated another that amalgamates and analyzes audio, video and text data [USPTO materials] to perform a similar function. It further alleges that AOL, Apple, Google and Yahoo violated two additional patents, 6,034,652 and 6,788,314 [USPTO materials], that identify advertisements, news and videos to display "in a way that occupies [a user's] peripheral attention." The suit seeks injunctive relief and unspecified monetary damages.

Allen's suit comes as several of the named companies face unrelated litigation alleging misappropriation of intellectual property. Connecticut company XPRT Ventures LLC sued [JURIST report] eBay last month claiming the infringement of six patents for online auctions and payment systems. In April, a federal appeals court found that eBay is not required to actively monitor its website [JURIST report] for the sale of counterfeit goods. The ruling followed shortly after a French court ordered [JURIST report] the company to pay LVMH Moet Hennessy Louis Vuitton (LVMH) [official website] damages for paying search engines to direct consumers to counterfeit LVMH products. LVMH previously secured a $63 million judgment [JURIST report] in 2008 for failing to prevent the sale of counterfeit luxury goods that infringed on registered designs. Patent holding company NTP filed suit [JURIST report] last month against Apple and Google, amongst other smart phone makers, related to the use of e-mail systems utilizing technology patented by NTP. The US International Trade Commission (ITC) [official website] launched an investigation [JURIST report] in June into allegations made by HTC Corp [corporate website] accusing Apple of patent infringement on certain portable electronic devices. In October, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that the company infringed 10 of its patents since the first iPhone was released in 2007. The patents cover wireless data transmission, speech coding and security/encryption.




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ICC reports Kenya to UN over al-Bashir visit
Jaclyn Belczyk on August 28, 2010 1:53 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Friday reported Kenya [decision, PDF] to the UN Security Council and the Assembly of States Parties to the Rome Statute over Friday's visit by Sudanese President Omar al-Bashir [case materials; JURIST news archive]. Al-Bashir was in Kenya, an ICC member state, to celebrate the signing of the country's new constitution [JURIST report]. ICC Pre-Trial Chamber I informed the Security Council and Assembly of States Parties of al-Bashir's visit, "in order for them to take any measure they may deem appropriate." Last month, al-Bashir visited Chad, another member state. The ICC also reported Chad [decision, PDF] Friday to the Security Council and Assembly of States Parties.

During al-Bashir's visit to Chad last month, ICC chief prosecutor Luis Moreno-Ocampo [official profile] pledged that he would eventually face trial before the ICC [JURIST report]. Earlier in July, the ICC charged al-Bashir with three counts of genocide [warrant, PDF; JURIST report] in relation to the Darfur conflict [BBC backgrounder]. The genocide charges were added to seven counts of war crimes and crimes against humanity that were filed against al-Bashir [JURIST report] in March 2009. Al-Bashir has eluded arrest since the issuance of the first warrant. The warrant has been controversial, with Egypt, Sudan, the African Union and others calling for the proceedings against Bashir to be delayed, and African Union leaders agreeing [JURIST reports] not to cooperate with the warrant.




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Madagascar ex-president sentenced to life over protester deaths
Jaclyn Belczyk on August 28, 2010 12:56 PM ET

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[JURIST] A court in Madagascar [JURIST news archive] on Saturday sentenced former president Marc Ravalomanana [BBC profile] to life in prison with hard labor for ordering the killing of opposition protesters in February 2009. Ravalomanana, who has been living in South Africa since his ouster in March of last year, was sentenced in absentia [BBC report] on charges of murder and accessory to murder in connection with the deaths of at least 30 people by his presidential guard. The protesters were led by Andry Rajoelina [official profile, in French; BBC profile], who assumed power [JURIST report] after Ravalomanana's resignation. This is the third conviction [JURIST report] of Ravalomanana since he left power, and his lawyer claims that the trials have been politically motivated to keep him from returning to Madagascar and running for reelection.

Madagascar has been embroiled in political crisis since last year, as Rajoelina's regime has not been recognized by the international community. Earlier this month, the country's political parties gave proposed names [AFP report] for the country's next prime minister to Rajoelina. The parties also reached an accord calling for a constitutional referendum to be held on November 17, parliamentary elections in March and a first round of presidential polls next May. Rajoelina, the former mayor of Madagascar's capital city of Antananarivo, was fired as mayor [BBC report] in January 2009 following his declaration that he was in charge of Madagascar and his failed efforts to impeach Ravalomanana. Much of the public unrest stemmed from criticisms that Ravalomanana failed to alleviate poverty, as well as his unpopular decision to shut down a television station [BBC report] owned by Rajoelina after the station aired an interview with one of Ravalomanana's former adversaries.




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Arizona files opening brief in immigration law appeal
Zach Zagger on August 27, 2010 3:10 PM ET

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[JURIST] Arizona Governor Jan Brewer (R) [official website] on Thursday filed the state's opening brief [text, PDF] in the US Court of Appeals for the Ninth Circuit [official website], asking the court to lift the preliminary injunction blocking Arizona's controversial immigration law [SB 1070 materials; JURIST news archive] from taking full effect. In the brief, Arizona argues that the preliminary injunction should be vacated because District Judge Susan Bolton applied the wrong legal standard in issuing the preliminary injunction. The brief argues the district court only found that the law was unconstitutional because it was "likely" to conflict with federal law. Arizona claims that, to prove a facial challenge to its law, the US must make "a clear showing that the provision is unconstitutional in all of its applications" and that this burden was not met. It further argues that the district court "erroneously accepted at face value all of the United States' factual assertions" to make its finding that the law conflicts with federal law. It claims that its law is constitutional because it mirrors federal immigration law and "reinforces Congress' objectives and carries out Congress'; intent to foster federal and state cooperation." The reply brief from the federal government is due September 23 with a hearing scheduled for November 1.

Last month, the Ninth Circuit denied Arizona's request for expedited appeal [JURIST reports]. The preliminary injunction [JURIST report] came at the request of the US Department of Justice (DOJ) [official website], which filed suit challenging the constitutionality of the law [JURIST report] last month. Bolton issued the injunction against provisions of the law requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants, authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation and requiring noncitizens to carry their registration papers with them at all times. The law has been widely criticized as unconstitutional for allegedly legalizing racial profiling. The American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] filed by the American Civil Liberties Union (ACLU) [advocacy website].




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Aide to Iran opposition leader sentenced to 5 years in prison: report
Matt Glenn on August 27, 2010 1:36 PM ET

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[JURIST] An Iranian court has sentenced Qorban Behzadiannejad, the campaign manager for opposition leader Mir Hossein Mousavi [BBC profile] during the 2009 election [JURIST news archive], to five years in prison, opposition website Kaleme [advocacy website, in Persian] reported [Kaleme report, in Persian] Friday. The report does not identify the charges [AP report] against Behzadiannejad. The former campaign manager was also reportedly fined $100 for insulting President Mahmoud Ahmadinejad [official website].

In June, Mousavi called for the prosecution [JURIST report] of those who committed fraud during the 2009 election and vowed to continue opposing Ahmadinejad. Earlier that month, Iranian Supreme Leader Ayatollah Ali Khamenei [official website; BBC profile] pardoned or commuted the sentences of 81 protesters [JURIST report] arrested following the disputed election. A Tehran Revolutionary Court [official website, in Persian] in April sentenced [JURIST report] three prominent progressive activists to six years in prison in connection with the protests. The men were high-ranking officials of the Islamic Iran Participation Front [party website, in Persian], a pro-democracy reformist political party that supported opposition leader Mousavi in the disputed election. Iranian authorities jailed prominent Iranian journalist Mohammad Nourizad and reform movement leader Hossein Marashi [JURIST reports] on similar charges in April and March, respectively.




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UN race committee calls for end to discrimination against Roma
Brian Jackson on August 27, 2010 1:30 PM ET

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[JURIST] The UN Committee on the Elimination of Racial Discrimination (CERD) [official website] concluded its 77th session Friday by expressing concern [text] with the discrimination faced by Roma migrants [JURIST news archive] in numerous European countries, focusing on France's recent expulsion policy. The committee's concern was not limited to France's expulsion policy, but also included the behavior of politicians, including "political speeches of a discriminatory nature." CERD noted the seeming contradiction between France's preparation of a national plan to fight racism, while at the same time expelling individuals without any consent:
The Committee expressed concern over the difficult situation members of the Roma community were facing with regard to their economic, social and cultural rights. As the State party had accepted the principle of linguistic and cultural diversity, the Committee was concerned over the partial implementation of that principle on the French territory.
France has defended its handling of the Roma [Telegraph report], saying only few cases result in forced deportation and that France was helping those displaced reintegrate into their countries of origin.

On Thursday, the EU Parliamentary Group of the Progressive Alliance of Socialists & Democrats accused France of violating EU law [JURIST report] with its expulsion policy. Last month, French President Nicolas Sarkozy [official website, in French] ordered measures against illegal Roma communities in France and announced legislation [JURIST report] that would make deportation easier. At the time, the French government aimed to dismantle half of illegal Roma camps within three months and to immediately deport all those found to have broken the law. In February, following the alleged rape of a 14-year-old girl by East European immigrants, Italian authorities began dismantling illegal immigrant camps [JURIST report] around Rome that were heavily populated by members of the Roma minority.




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UN Security Council urges justice for DRC rape victims
Matt Glenn on August 27, 2010 1:07 PM ET

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[JURIST] Members of the UN Security Council [official website] expressed "outrage" [statement; UN News Centre report] Thursday over a recent mass rape in the Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive], calling for justice for the victims. UN representatives allege that Congolese rebel groups Mai Mai and the Democratic Liberation Force of Rwanda (FDLR) [GlobalSecurity backgrounders] raped between 150 and 200 women and children [NYT report] in a small cluster of villages in eastern DRC between July 30 and August 3 of this year. The attackers allegedly blocked all communication [BBC report] from the villages, preventing villagers from alerting UN peacekeepers stationed nearby. The Security Council said it hopes to be briefed on findings by Assistant Secretary-General Atul Khare and the Secretary General's Special Representative on Sexual Violence in Conflict, Margot Wallstrom who were dispatched to the DRC Wednesday.

Human rights have long been a major concern in the DRC. In June, national police chief John Numbi was suspended [JURIST report] as part of the ongoing investigation into the murder of human rights activist Floribert Chebeya. In December, HRW urged the UN Organization Mission in DR Congo (MUNOC) [official website] to stop funding military groups [JURIST report] in the country that are committing human rights abuses. In December 2008, AI reported that rape and sexual warfare have been employed [JURIST report] by both the DRC military and by rebel forces. In November 2008, MUNOC head Alan Doss [appointment release] condemned [JURIST report] the killing of civilians by militias in the country as war crimes. MONUC has been operating in DRC since 1999. The conflict in the DRC has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.




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FCC appeals circuit court ruling on television indecency policy
Brian Jackson on August 27, 2010 12:26 PM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday appealed [text, PDF] a decision [JURIST report] by the US Court of Appeals for the Second Circuit that the agency's television indecency rule [text] is unconstitutionally vague in violation of the First Amendment. The July appellate court decision further held that the FCC's rule, which allowed broadcasters to be fined based on isolated expletives, chills protected speech, as broadcasters would err on the side of not airing controversial matter, rather than face the prospect of significant fines. The agency's appeal for rehearing and an en banc rehearing argues that the Second Circuit's decision conflicts with Supreme Court precedent, particularly the court's decision in FCC v. Pacifica Foundation [materials], the "Seven Dirty Words" decision. The FCC concluded its argument by asserting that, under the Second Circuit's prior ruling, the agency would be unable to develop a clear indecency rule, and:
The panel's opinion may theoretically leave open the possibility that the FCC could return to something like its pre-1987 policy, which focused on Carlin's seven dirty words. During the time when that policy prevailed, however, "not a single enforcement action was brought." It is easy to understand why, in light of the freedom that policy gave to broadcasters to air indecent material so long as they "avoided certain words."
Under Federal Rule of Appellate Procedure 40 [text], there is no absolute right for the networks involved in the controversy to answer the FCC's petition for rehearing, and the court may issue a decision without hearing re-argument.

The US Supreme Court originally remanded the case to the appeals court after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.




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Kenya president signs new constitution into law
Megan McKee on August 27, 2010 9:11 AM ET

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[JURIST] Kenyan President Mwai Kibaki [official profile] signed a new constitution [text, PDF] into law Friday as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority [AP report], among which are the creation of a supreme court and senate. The constitution also requires reforms [Guardian report] to the nation's judiciary and land tenure system and improvements in civil rights and women's representation. The government is now expected to start implementing the new constitution, which could take as long as five years. This document has been received as one of the most significant events in Kenya since its independence.

The new constitution was approved [JURIST report] by popular referendum earlier this month. Voting on the constitution took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST report] in 2007. The creation of a new constitution was part of a power-sharing agreement [JURIST report] reached in 2009 between Kibaki and opposition leader Prime Minister Raila Odinga [official website] that brought to an end the civil unrest that followed the contested election. Election officials sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.




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Federal judge sends immigration law decision to Nebraska high court
Daniel Makosky on August 27, 2010 8:33 AM ET

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[JURIST] US District Judge Laurie Smith Camp ruled Wednesday that the Nebraska Supreme Court [official website] should be the first forum to address a city of Fremont ordinance [No 5165 text] banning the hiring, harboring or renting of property to illegal immigrants [JURIST news archive]. The order requests that the parties attempt to agree upon the language of a question [Fremont Tribune report] to be submitted to Nebraska's high court and advises that any remaining federal issues will be addressed following that court's decision. The controversial ordinance would require all employers in the city to register for the E-Verify program [DHS website] and would make it a crime to rent to illegal immigrants. It would also void any lease entered into by an illegal immigrant and would require every person seeking to rent residential property to obtain an occupancy permit from the city, which would require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. Smith Camp's ruling comes after combining lawsuits [JURIST report] from the American Civil Liberties Union (ACLU) and Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] filed in the US District Court for the District of Nebraska [official website] last month.

Following last month's challenges to the ordinance, passed via referendum in June, the Fremont City Council voted unanimously and without debate to suspend the legislation [JURIST reports] until a resolution was reached. The council also approved the hiring of Kris Kobach [academic profile], a law professor and Kansas political candidate, to defend the city against the lawsuits. Kobach assisted in the drafting of the ordinance and the Arizona immigration law [SB 1070 materials; JURIST news archive] and offered his assistance to Fremont pro bono. The ACLU challenged the law based on the Equal Protection and Supremacy [Cornell LII backgrounder] clauses of the US Constitution [text]. MALDEF's lawsuit [complaint, PDF] makes nearly identical arguments, adding that the ordinance interferes with a person's right to enter into and enforce contracts under federal law [42 USC § 1981 text] and violates Article 11 of the Nebraska Constitution [text] because the Fremont municipal government has not been empowered by the Nebraska Legislature [official website] to enforce immigration law. Additionally, MALDEF cites five cases of similar local laws that were struck down by federal and state courts, including a nearly identical law struck down [JURIST report] by a federal district court in Texas. A previous version of the ordinance was narrowly voted down [BBC report] by the city council in 2008.




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Spain extradites Montenegrin war crimes suspect to Bosnia
Daniel Makosky on August 27, 2010 7:16 AM ET

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[JURIST] Bosnia and Herzegovina's Presidency Chairman Zeljko Komsic [official website, in Croatian] announced Thursday that Spanish officials extradited [press release, in Croatian] accused Montenegrin war criminal Veselin Vlahovic to Sarajevo. Vlahovic, known as the "monster of Grbavica," is wanted on three international arrest warrants, including one for the rape, torture and murder of more than 100 women and children during the 1992-1995 Bosnian civil war [JURIST news archive]. He is expected to face genocide charges [Reuters report] before the country's war crimes court, established in 2005 to assist the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Spanish police captured [JURIST report] Vlahovic in March after he was accused of several burglaries near his home in Altea. Vlahovic is also wanted for a series of additional violent crimes. In 1998, he was imprisoned in Montenegro for armed robbery but escaped in June 18 2001. Three days later, he shot a man outside a bar in Serbia and was convicted in absentia and sentenced to 15 years. He was also wanted in Spain for armed robbery.

Vlahovic's arrest comes as former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive], stands trial before the ICTY for alleged war crimes during the Bosnian War. Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for crimes allegedly committed during the 1992-1995 Bosnian conflict. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report] and is planned to be the tribunal's last.




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Prosecutors drop all charges against Blagojevich's brother
Megan McKee on August 26, 2010 3:39 PM ET

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[JURIST] Federal prosecutors announced Thursday that they would dismiss all charges against Robert Blagojevich, the brother of former Illinois governor Rod Blagojevich [JURIST news archive]. Robert Blagojevich faced four counts for his suspected involvement in the alleged conspiracy to sell the Senate seat left vacant by President Barack Obama. In a hearing Thursday before Judge James Zagel of the US District Court for the Northern District of Illinois [official website], prosecutors announced that they would proceed with their case against Rod Blagojevich. While Rod Blagojevich was found guilty [JURIST report] earlier this month of making false statements to the FBI, the jury was deadlocked on the 23 additional charges. Zagel announced that the retrial of Rod Blagojevich will likely begin in early January.

Rod and Robert Blagojevich and four associates were indicted [JURIST report] on corruption charges in April 2009 by a federal grand jury. Rod Blagojevich was charged with numerous felonies including wire fraud, attempted extortion, racketeering conspiracy, extortion conspiracy and making false statements. The indictment alleged that the suspects systematically planned to use Blagojevich's office for their own gain, including conspiring to sell or trade the Senate seat left vacant by Obama, obtaining illegal campaign contributions, and threatening to withhold assistance to the Chicago Tribune with the sale of Wrigley Field unless two editorial writers who had been critical of Blagojevich were fired. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office.




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EU socialists claim France Roma deportations violate EU law
Christian Ehret on August 26, 2010 12:22 PM ET

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[JURIST] The EU Parliament Group of the Progressive Alliance of Socialists & Democrats [official website] on Thursday accused France of violating EU law [press release] by deporting up to 1,000 Roma migrants [JURIST news archive] from the country. The group cited EU directive 38/2004 [text, PDF] for the proposition that EU citizens are free to move within EU territory. The group also raised concerns about allegations of the country fingerprinting deportees, stating that such actions violate the EU Charter of Fundamental Rights and Freedoms [text, PDF] in addition to other laws. Group leader Martin Schulz addressed the group's concerns, stating:
As a founding principle, the EU bans discrimination based on ethnic origin or nationality. This ban is part of the EU's DNA and its identity as a community of values, as defined by the Charter of Fundamental Rights. Now, with the Lisbon Treaty in force, it has the status of binding primary law. ... The recent treatment of Roma people in France was appalling and cannot go unchallenged. Their rights have been abused for populist, electoral reasons by a government that is fast losing support. ... Scenes like those we have recently witnessed in France must never be repeated.
Schulz additionally condemned the European Commission and European Council for failing to act in light of the EU Parliament's recent backing of a strategy for the Roma. Schulz called on the two institutions to account for their inaction.

Last month, French President Nicolas Sarkozy [official website, in French] ordered measures against illegal Roma communities in France and announced legislation [JURIST report] that would make deportation easier. At the time, the French government aimed to dismantle half of illegal Roma camps within three months and to immediately deport all those found to have broken the law. In February, following the alleged rape of a 14-year-old girl by East European immigrants, Italian authorities began dismantling illegal immigrant camps [JURIST report] around Rome that were heavily populated by members of the Roma minority.




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Germany constitutional court rules EU court precedents must be followed
Hillary Stemple on August 26, 2010 11:55 AM ET

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[JURIST] The German Federal Constitutional Court [official website, in German] ruled [judgment, in German; press release, in German] Thursday that German courts must follow precedent established by the European Court of Justice (ECJ) [official website] unless it is clearly a violation of the court's power. The court noted that minor violations of the ECJ's authority would not be enough to disqualify a ruling and that a ruling can be disregarded only if European institutions clearly violate the authority granted to them at the expense of the authority of the member states. The court's ruling came in a case involving a German law that made it easier to limit the employment contracts of workers over the age of 52, which ultimately led younger workers to be better protected by their employment contracts. The ECJ ruled that the law was in violation of an EU general principal [Bloomberg report] against age discrimination. A dissenting opinion in the ruling rejected the majority's finding that there was no violation of ECJ authority in this case and stated that allowing ECJ opinions to set precedent for the member states significantly shifted the structure of power. The ECJ ruling has been controversial in Germany and has been criticized by legal scholars in the country.

Other EU member states have also struggled with the enforcement of ECJ rulings. Earlier this month, the UK High Court suspended the enforcement of an airline regulation [JURIST report] requiring airlines to compensate passengers for flights that are delayed for more than three hours, until the ECJ releases a new ruling on the issue. The ECJ issued its original ruling on the matter [JURIST report] in November, but UK airlines indicated that they believe the ECJ's 2009 ruling was incorrect [trade group report, PDF] and that they would not compensate passengers for delayed flights. The ECJ is not expected to review the case [Travel Weekly report] until 2012.




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UN considers new international tribunal for piracy trials
Andrea Bottorff on August 26, 2010 11:16 AM ET

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[JURIST] The UN Security Council [official website] on Wednesday began considering several options [report text] to help counter ongoing piracy off the coast of Somalia [JURIST news archive], including the creation of a new international tribunal. In a report released last week, UN Secretary-General Ban Ki-moon [official website] suggested that the UN must establish, or continue to help countries establish, the means to prosecute individuals accused of committing acts of piracy [UN News Centre report], particularly in the high-traffic Indian Ocean and surrounding waters. Ban also explained the challenges facing the UN in pursuing a new international court:
The Security Council request emphasizes the important goal of achieving and sustaining substantive results. A key consideration in this respect would be the need for sufficient political and financial commitment among States, in difficult economic times, not only to establish a new judicial mechanism, but also to sustain it. A new judicial mechanism to address piracy and armed robbery at sea off the coast of Somalia would be addressing a different situation to that addressed by the existing United Nations and United Nations-assisted tribunals. Such a mechanism would face ongoing criminal activity and potentially a large caseload, with no predictable completion date.
Ban's suggestions have met with approval from countries in the Security Council. US Ambassador to the UN Susan Rice [official profile] on Wednesday emphasized the need for adequate imprisonment locations [statement], as well as the importance of establishing stability in Somalia [CFR Backgrounder]. China also announced its support of the report [Xinhua report] on Wednesday, highlighting the need for international cooperation on the issue.

In June, the UN Office on Drugs and Crime (UNODC) [official website] announced the opening of a new high-security courtroom in Kenya [JURIST report] established to hear maritime piracy cases as well as cases involving other serious criminal offenses. The courtroom opened after the Kenyan government announced in April that it would no longer accept [JURIST report] Somali pirate cases due to its overburdened legal system and the lack of support that had been promised by the international community. The international community has been supporting actions taken against maritime piracy. The UNODC announced in May that Seychelles would create [JURIST report] a UN-supported center to prosecute suspected pirates. In April, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging the Secretary-General to consider an international tribunal for prosecuting piracy.




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Croatia extradites convicted Djindjic assassin to Serbia
Erin Bock on August 26, 2010 8:19 AM ET

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[JURIST] Croatian authorities on Wednesday extradited a man to Serbia for his connection with the 2003 assassination [JURIST report] of former Serbian prime minister Zoran Djindjic [BBC obituary; memorial website, in Serbian]. Sretko Kalinic was discovered by authorities in Zagreb in June [Xinhua report] after he was shot by a member of the Zemun gang, a Serbian organized crime ring. Kalinic, a dual citizen of Croatia and Serbia, was also a member of the gang [Reuters report], which has been linked to political killings in the early 2000s, including the Djindjic assassination. Kalinic was convicted in absentia in 2007 of plotting the assassination and sentenced to 30 years in jail. He was flown from Zagreb to Belgrade on Wednesday morning in accordance with a recent agreement signed in June between the two countries permitting extradition of organized crime suspects. Kalinic was immediately taken into custody and placed in Belgrade's central prison, where he now has the right to ask for a retrial [BBC report].

A total of 12 men were convicted and sentenced [JURIST report] for their roles in Djindjic's assassination by the Belgrade Special Court in 2007. Milorad Ulemek, a paramilitary commander under Slobodan Milosevic [JURIST news archive] was sentenced to the maximum sentence of 40 years for his role in organizing the assassination. Zvezdan Jovanovic was also sentenced to 40 years for firing the shot that killed Djindjic, though Jovanovic claimed he was illegally forced to sign a confession in 2006 [JURIST report]. The other defendants received sentences ranging from eight to 35 years in prison.




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Wal-Mart appeals class action certification to Supreme Court
Daniel Richey on August 26, 2010 7:30 AM ET

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[JURIST] Wal-Mart [corporate website; JURIST news archive] petitioned [text, PDF] the US Supreme Court [official website] Wednesday to reconsider a decision by the US Court of Appeals for the Ninth Circuit [official website] affirming class action certification [opinion, PDF; JURIST report] in a gender discrimination case. The company has asked the court to examine whether the appeals court's April ruling was proper under Title VII of the Civil Rights Act of 1964, the Due Process Clause, the Seventh Amendment and Federal Rule of Civil Procedure 23 (FRCP) [texts]. Wal-Mart's position is that the class is overbroad and that the Ninth Circuit's decision is inconsistent with certification standards in multiple circuits:
The district court certified a sprawling nationwide class consisting of all current and former female employees of Wal-Mart Stores, Inc., estimated at the time to comprise at least 1.5 million women. The Ninth Circuit's 6-5 en banc decision ... adopts standards that violate the rights of both defendants and absent class members and contradicts decisions of this Court and other circuits The Ninth Circuit created an acknowledged three-way circuit split on the standard for determining when claims for monetary relief can be certified as a class action. ... The majority expressly rejected both of the standards previously articulated in the circuits (one of which had been applied by the district court) and announced a new standard, thus exacerbating the long-standing conflict and confusion on this issue in the lower courts.
Wal-Mart also contends that claims for monetary relief cannot be certified under FRCP 23, which it says only applies to claims to injunctive relief.

The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. The Ninth Circuit granted an en banc rehearing [JURIST report] to Wal-Mart last year. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which it said violates its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually, while plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.




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Uganda court overturns anti-sedition law
Dwyer Arce on August 25, 2010 2:35 PM ET

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[JURIST] A panel of the Ugandan Constitutional Court [official website] ruled unanimously Wednesday that a law criminalizing sedition violates the guarantees of free speech and freedom of the press under the Ugandan Constitution [text, PDF]. The law made it a crime to say or publish statements that promoted hatred, contempt or disaffection for the Ugandan government, president or judiciary [GlobaLex backgrounder]. A conviction could carry a sentence of seven years. The law was first challenged by Andrew Mwenda four years ago, after he was charged with sedition [JURIST report] in 2005. The court held that the law unconstitutionally restricts [New Vision report] the rights of Ugandans under Article 29 of the Constitution. The decision drops charges against 10 other journalists and five politicians [AP report] who had faced charges under the law. The court allowed charges of promoting sectarianism against Mwenda to stand, however, finding that the crime was allowed because it was in existence prior to the adoption of the current Ugandan Constitution in 1995.

In 2008, Ugandan police arrested Mwenda and two other journalists [JURIST report] as part of a sedition investigation. The journalists worked on two articles published in the Independent [media website] that were critical of the Ugandan military. Mwenda's arrest occurred after he was released on bail in August 2005, following his plea of not guilty to charges of sedition. Mwenda was charged after criticizing the Ugandan government concerning the death of Sudanese Vice-President John Garang. Mwenda alleged that Ugandan President Yoweri Museveni [official profile], a close friend of Garang's, was responsible for his death through sheer incompetence. Museveni had lent Garang the aircraft he was flying in when the crash occurred [JURIST report].




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Yemen counter-terror methods violate human rights: AI
Dwyer Arce on August 25, 2010 1:09 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday criticized [report, PDF; press release] methods used by the government of Yemen [JURIST news archive] in counter-terror operations as violations of human rights. In a report, "Yemen: Cracking Down Under Pressure," the rights group accused the government of perpetrating numerous human right abuses in attempting to quell the rebel movements of the Zaidi Shi'a [Al Jazeera backgrounder] in the north and the Southern Movement, in addition to its US-sponsored actions against al Qaeda [CFR backgrounder]. These alleged abuses include arbitrary arrests, torture, extrajudicial killings and forced disappearances, among other actions taken by security forces. These forces, according to AI, are accountable only to Yemeni President Ali Abdullah Saleh [BBC profile]. The report also cited the rising number of executions [JURIST news archive] in the country after convictions for links to al Qaeda or the rebel movements. AI also pointed to the actions of the US and Saudi Arabia in promoting these actions by Yemeni authorities following the attempted bombing of Northwest Airlines Flight 253 by Umar Farouk Abdulmutallab [JURIST news archive] in December. According to AI, international pressure following this incident, in which al Qaeda operatives in Yemen are believed to have been involved, has caused the government to abandon progress in human rights:
An extremely worrying trend has developed where the Yemeni authorities, under pressure from the USA and others to fight al-Qa'ida, and Saudi Arabia to deal with the [Zaidi], have been citing national security as a pretext to deal with opposition and stifle all criticism. All measures taken in the name of countering terrorism or other security challenges in Yemen must have at its heart the protection of human rights. The Yemeni authorities have a duty to ensure public safety and to bring to justice those engaged in attacks that deliberately target members of the public, but when doing so they must abide by international law. Enforced disappearances, torture and other ill-treatment, and extrajudicial executions are never permissible, and the Yemeni authorities must immediately cease these violations.
AI went on to criticize the role of the special counter-terrorism courts that have been used by Yemeni authorities to convict journalists and opposition figures critical of the government. The report called for an end to these abuses, for an investigation into alleged abuses and for the international community to pressure the Yemeni government to respect human rights.

In 2008, Human Rights Watch (HRW) [advocacy website] accused Yemeni security officials of unlawfully and arbitrarily detaining hundreds of individuals [JURIST report] as part of its campaign against the Zaidi rebels since 2004. The report found that government security forces sometimes unlawfully arrested individuals who have committed no crime to pressure a wanted family member to surrender, silence journalists, or to put pressure on human rights activists. HRW urged the Yemeni government to establish an independent commission with full authority to investigate the alleged disappearances and unlawful arrests, and prosecute officials and members of security forces involved in the illegal acts. The Yemeni government has been fighting the Zaidi rebels since 2004, the movement seeks to revive the influence of Zaidi Hashemites imams, which had been previously heavily involved in government in northern Yemen until 1962.




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Equatorial Guinea defends executions over 2009 coup
Sarah Miley on August 25, 2010 12:55 PM ET

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[JURIST] Equatorial Guinea on Tuesday defended the execution of four men convicted on Saturday of attempting to assassinate President Teodoro Obiang during a 2009 attack on the presidential palace. Jose Abeso Nsue, Manuel Ndong Anseme, Alipio Ndong Asumu and Jacinto Micha Obiang were executed immediately after being convicted by a military court in Malabo. Amnesty International (AI) [advocacy website] condemned the execution [press release] on Monday claiming that the four men were detained in Black Beach prison in Malabo where they were tortured into giving false confessions. Denouncing the government's judicial procedure, AI Africa Director Erwin van der Borght stated:
These men were convicted after an unfair trial, sentenced to death and executed with chilling speed without having the slightest opportunity to appeal their sentence. Equatorial Guinea must put an end to the abductions, torture and executions it currently carries out under the pretense of justice.
The government stands by the conviction [AP report] of the four former government officials, stating that they received a fair and open trial before a military tribunal and were provided with counsel.

In April, an Equatorial Guinea court sentenced seven Nigerians [JURIST report] to 12 years in prison on terrorism charges for their role in the 2009 attack. Security forces stopped the Nigerian gunmen, alleged members of the Movement for the Emancipation of the Niger River Delta (MEND) [GlobalSecurity backgrounder], who were supposedly guided to the presidential palace by locals on mobile phones. The court also released four additional Equatorial Guineans, all members of the opposition People's Union Party, after freeing seven last month for a lack of evidence. Last year, former British military officer with the elite Special Air Service [BBC backgrounder], Simon Mann [BBC profile, JURIST news archive], convicted [JURIST report] in 2008 of involvement in a 2004 coup attempt [BBC backgrounder], was released from prison after being pardoned [JURIST report] by Obiang. Mann was arrested in 2004 after a plane carrying him and approximately 60 mercenaries landed in Zimbabwe.




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DOJ to appeal decision blocking funding for stem cell research
Sarah Miley on August 25, 2010 12:11 PM ET

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[JURIST] The US Department of Justice [DOJ] [official website] announced Tuesday that it will appeal a preliminary injunction [JURIST report] issued earlier this week blocking federal funding for embryonic stem cell [JURIST news archive] research. The DOJ will seek to appeal the suspension and also to stay the suspension while the appeal is pending. Last year, President Barack Obama signed an executive order [JURIST report] permitting federal funding for some forms of embryonic stem cell research. Despite the executive order, Chief Judge Royce Lamberth of the US District Court for the District of Columbia [official website] held that evidence showed the plaintiffs were substantially likely to prevail based on existing law. White House spokesperson Bill Burton addressed reporters [press briefing] on Tuesday, stating that the Obama administration is "reviewing all possibilities" in order to further the advancement of stem cell research:
The President said very plainly when he laid out his stem cell policy that this is important lifesaving—potentially lifesaving research that could have an impact on millions of Americans and people all around the world. He thinks that we need to do research. He put forward stringent ethical guidelines, and he thinks that his policy is the right one. We're still reviewing the decision from this judge, but what we've seen so far, from what we can tell, this would also stop the research that President Bush had allowed to go forward early in his presidency. So we're exploring all possible avenues to make sure that we can continue to do this critical lifesaving research.
The issue that will have to be determined by the appeals court is whether the law banning stem cell research unambiguously blocks any kind of research involving human embryos, or if they law is ambiguous and does not apply to current embryonic stem cell research in which stem cells are taken from fertility clinic embryos that are no longer needed and would have been discarded.

The case had originally been dismissed for lack of standing last October but was reinstated [JURIST reports] in June with only plaintiffs who claimed their their ability to obtain funding for adult stem cell research was harmed by increased competition for federal funds after they were permitted to also be used for embryonic stem cell research. Those new guidelines reversed previous rules that limited government funding of embryonic stem cells to only cell lines that were in existence as of August 2001. Despite pressure from the scientific community, the previous administration refused similar changes to funding guidelines. In 2007, then-president George W. Bush vetoed [JURIST report] the Stem Cell Research Enhancement Act of 2007 [S 5 materials], which was intended to relax funding restrictions on embryonic stem cell research. The administration rejected the bill, saying it would compel taxpayers to support the destruction of human embryos. In 2006, Bush vetoed a previous version [JURIST report] of the Stem Cell Research Enhancement Act, which was passed by the Senate to remove restrictions on embryonic stem cell research, saying he would not provide federal funding for stem cell research because many consider the destruction of embryos to be murder.




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Switzerland activists withdraw from campaign to reinstate death penalty
Andrea Bottorff on August 25, 2010 11:00 AM ET

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[JURIST] Capital punishment advocates in Switzerland on Wednesday unexpectedly withdrew [advocacy website, in German] from their campaign to reinstate the death penalty [JURIST news archive] only one day after the Federal Chancellery [official website, in German] allowed them to begin collecting signatures [JURIST report] in support of a referendum [text, in German]. The advocacy group did not give a reason for its sudden withdrawal from the campaign, though it continues to argue that the Swiss criminal justice system hurts victims by failing to adequately punish those convicted of serious crimes. On Tuesday, the Swiss government set a six-month deadline for the group to accumulate at least 100,000 signatures in support of the measure in order to force a national popular vote. The group's campaign to change the law had started a heated debate [Swissinfo report] in the country where most people oppose the death penalty. Capital punishment was abolished from Switzerland's criminal code in 1942 and remained part of the country's military laws until 1992. The last military execution, however, took place in 1944.

Despite the continued use of the death penalty in some countries, there is a growing movement toward international abolition. Earlier this year, Amnesty International (AI) [advocacy website] reported [JURIST report] the number of countries using the death penalty dropped [report, PDF] in 2009. According to the report, more than 700 people were executed last year in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. AI's figures exclude the estimated thousands of executions in China [press release], where the government refuses to release death penalty statistics. AI challenged China and other nations to disclose information about executions and condemned all forms of capital punishment. More than two-thirds of the world's countries have abolished the death penalty in law or in practice.




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Ex-Khmer Rouge leader appeals conviction
Ann Riley on August 25, 2010 9:56 AM ET

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[JURIST] Lawyers for former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive] on Tuesday filed a notice of an appeal [text, PDF] of his conviction by the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. Last month, the trial chamber of the ECCC convicted Kaing [JURIST report], also known as "Duch," of crimes against humanity and of violating the 1949 Geneva Conventions, sentencing him to 35 years in prison. Kaing's sentence was reduced to 19 years after the court considered time served as well as other factors. The defense's appeal calls for Kaing's acquittal on the grounds that the trial chamber does not have personal jurisdiction over him and there was error in determining his 35-year sentence. The defense reasons that the court relied on the prosecution's evidence in finding that the case came under the temporal, territorial and material jurisdiction of the ECCC, but failed to show beyond a reasonable doubt why Kaing fell under its personal jurisdiction. In giving preference to common law principles, the defense contends that the court's interpretation of jurisdiction violates Article 2(1) of the Agreement between the United Nations and the Royal Government of Cambodia and Articles 1 and 2 of the ECCC law [texts, PDFs]. The appeal also asks the court to find that Kaing was merely a witness to the events and that his detention period from the date of his arrest to the date of the judgment qualifies as witness protection.

Last week, the prosecution filed a notice of an appeal [JURIST report] seeking to increase Kaing's term of imprisonment. The prosecution identified three grounds for appeal, including a discernible error in the exercise of sentencing discretion, an error of law regarding cumulative convictions and an error of law regarding enslavement. Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families, mitigating conduct that earned him a reduced sentence from the 40 years prosecutors originally sought. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provision detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution.




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Wyoming same-sex marriage ban challenged
Sarah Miley on August 25, 2010 9:08 AM ET

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[JURIST] A gay couple has filed suit [Justia docket] in the US District Court for the District of Wyoming [official website] challenging the state's law defining marriage [20-1-101 text] as only existing between a man and a woman. The suit was filed earlier this month by David Shupe-Roderick and Ryan W. Dupree of Cheyenne after they were denied a marriage license from the office of the Laramie County Clerk [official website]. The plaintiffs are seeking an injunction against the enforcement of any law that denies same-sex couples the right to civil marriage. The district attorney has yet to comment on the suit. The plaintiffs will serve as their own legal representatives [AP report].

Earlier this month, a judge for the US District Court for the Northern District of California [official website] ruled [JURIST report] that California's ban on same-sex marriage [JURIST news archive] violates the US Constitution [text]. Judge Vaughn Walker held that the ban, known as Proposition 8 [text; JURIST news archive], violated both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. The State of California, which was an original defendant to the suit, has decided not appeal the decision leaving defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. Last week, the Ninth Circuit issued an emergency stay [JURIST report] on Walker's ruling while the court considers the issues raised on appeal as well as whether the remaining parties to the suit have Article III standing to appeal. The court of appeals is scheduled to begin hearing oral arguments in the case in December.




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Conservative Austria party calls for vote to ban minarets, face veils
Daniel Richey on August 25, 2010 8:24 AM ET

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[JURIST] Austria's conservative Freedom Party [official website, in German] on Monday called for a special vote [press release, in German] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. Specifically, the referendum would ask Viennese citizens to decide whether to ban the construction of mosques with minarets, whether to ban the wearing of the burqa and the niqab [JURIST news archives] and whether the government should require Muslim citizens to sign a statement affirming a commitment to Austrian secular law over the Sharia law [CFR backgrounder; JURIST news archive]. Though such a referendum would be non-binding, it could be used by the Austrian Parliament [official website] to guide policy decisions and would likely generate a swell of debate in advance of an October 10 regional election in Vienna. Party leader Heinz-Christian Strache [official profile, in German] said the burqa "promote[s] the oppression of women" and characterized the proposed vote as a statement on Austrian cultural values:
People have a right to evaluate [Islamic] symbolism and vote whether they permit Muslims to build such buildings ... Many Muslims openly admit that [they] prefer to live in a theocracy under Sharia law, but that is totally unacceptable.
Conservatives in Austria were galvanized earlier this month when Anas Shakfeh, the president of the Austrian Islamic Denomination said [Austrian Times report] he hoped to see the erection of mosques with visible minarets in each of Austria's nine provinces. Of the approximately 1.2 million Viennese who would be eligible to vote on the referendum, approximately 120,000 are Muslim.

Last month, the French National Assembly voted 336-1 to ban [JURIST report] the wearing of burqas. Also in July, the Syrian Minister of Education issued a directive [JURIST report] forbidding students and teachers from wearing the niqab, while Spain's lower house of parliament rejected a proposal to ban Islamic face veils. In March, the UN Human Rights Council adopted a resolution [text, PDF; JURIST report] condemning international religious discrimination and xenophobia. The resolution specifically criticized Switzerland's controversial 2009 ban [JURIST report] on the construction of minarets. In December 2009, a Swiss Muslim launched a legal challenge [JURIST report] to the ban in the European Court of Human Rights (ECHR) [official website]. It has been argued [Reuters report] that the ban violates Articles 9, 13 and 14 of the European Convention on Human Rights [text, PDF].




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Israel police call for ex-PM to stand trial on real estate corruption charges
Sarah Miley on August 25, 2010 7:49 AM ET

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[JURIST] The Israeli Police [official website] on Monday recommended that former prime minister Ehud Olmert [official profile; JURIST news archive] stand trial for his alleged involvement in the Holyland bribery scandal that occurred during his time as mayor of Jerusalem. A investigation was commenced [JURIST report] in April to probe Olmert's involvement in the alleged scandal in which top Jerusalem officials are believed to have taken bribes for enabling the construction of a high-rise luxury housing development. The police now suspect Olmert [AP report] of fraud, breach of trust and taking bribes to promote the project. Seven former officials have been arrested, including former Jerusalem mayor Uri Lupolianski, who was deputy mayor under Olmert. Lupolianski accused Olmert of being responsible for the scandal, saying the deputy mayor is nothing more than a mere title with no real authority. Police believe Olmert alone received USD $940,000 to approve zoning change, rejecting hundreds of objections, to allow for a 12-fold increase in the number of residential units allowed in the area, enabling the construction of a high-rise complex. Olmert is denying involvement in the scandal.

Olmert has been embroiled in accusations of scandal for much of his political career. He is already facing trial [JURIST report], the first of a former or current Israeli prime minister, for corruption and fraud charges that led to his resignation from prime minister in 2008. He is accused of illegally accepting cash contributions from an American businessman, double billing [JURIST reports] travel expenses to the state and charitable donors, and giving his former law partner access to state information. In April 2007, Olmert was investigated for improperly favoring his supporters [JURIST report] in distributing business grants during his time as trade minister. In January 2007, the Israeli Ministry of Justice announced plans to launch an investigation [JURIST report] into allegations that he promoted the interests of two business associates during the 2005 state sale of Bank Leumi [corporate website]. Last month, a complaint was filed [JURIST report] against Olmert and other top Israeli officials over their involvement in Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] for violating anti-terror laws [AFP report] and laws requiring the protection of civilians during the 22-day conflict in the Gaza Strip [BBC backgrounder]. If the complaint is accepted by the Rabat chief prosecutor, the Israeli officials would face arrest upon entering Moroccan jurisdiction.




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Federal court denies habeas petition in Davis death penalty case
Daniel Richey on August 25, 2010 7:16 AM ET

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[JURIST] The US District Court for the Southern District of Georgia [official website] on Tuesday denied [order part 1, PDF; part 2, PDF] the habeas corpus petition of Troy Anthony Davis [advocacy website; JURIST news archive], convicted and sentenced to death for murdering an off-duty Savannah, Georgia, police officer. After Davis exhausted his appeals under the Antiterrorism and Effective Death Penalty Act [text], the US Supreme Court [official website] took the rare step of granting [order, PDF; JURIST report] his original writ of habeas corpus [cert. petition, PDF] and instructed the district court to examine new findings of fact in the case. The district court indicated that its hearing uncovered nothing to satisfy the high level of scrutiny to which habeas petitions are subjected, concluding that "while executing an innocent person would violate the United States Constitution, Mr. Davis has failed to prove his innocence." Amnesty International (AI) [advocacy website], which has campaigned on Davis' behalf, criticized [press release] the ruling, pointing out that four witnesses to the shooting testified that they lied when they implicated Davis in his original trial, and several others identified another man present at the scene as the killer. While an appeal is expected, the district court has said it is unsure what court would have jurisdiction under 28 USC § 2241 [text]. The uncertainty underscores the unusual nature of the sequence of events that brought Davis' petition to the Southern District of Georgia, a process that Supreme Court Justice Antonin Scalia described in his 2009 dissent [text, PDF] as "a confusing exercise that can serve no purpose except to delay the State's execution of its lawful criminal judgment." It is possible that an appeal would go directly to the Supreme Court.

In October 2008, the US Court of Appeals for the Eleventh Circuit granted Davis a provisional stay of execution [JURIST report], directing the parties to address through briefs whether Davis can meet the stringent requirements of federal law that would permit him to file a second habeas corpus petition for federal review of his case. The Supreme Court had rejected [JURIST report] Davis' petition for certiorari appealing his death sentence earlier that month, lifting their own stay on his execution. The court had previously stayed [JURIST report] Davis' execution and had also previously denied a petition for certiorari in the case.




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Turkish prosecutors to investigate allegations of fabricated coup plot
Sarah Paulsworth on August 24, 2010 5:21 PM ET

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[JURIST] Turkish prosecutors on Tuesday announced plans to investigate claims by Eskisehir Police Chief Hanefi Avci that evidence of several alleged coups plots, particularly Ergenekon [BBC backgrounder; JURIST news archive], was fabricated. Avci alleged in a book he recently published, Devotee Residents of Halich: Yesterday State, Today Religious Congregation, that the evidence was distorted and fabricated [Sabah report, in Turkish] by followers of Islam preacher Fethullah Gulen [official website], in effort to weaken the ruling Justice and Development Party (AKP) [party website, in Turkish]. Avci also claimed the Ergenekon trials were concocted by Turkey's government to silence critics [Today's Zaman report]. According to Turkey's Minister of Interior Bashir Atalay, a decision about further action regarding Avci's allegations will be made at the conclusion of the investigation [AA report, in Turkish]. While the prosecutor's office is now investigating Avci's allegations, Avci himself is the subject of a separate investigation [Hurriyet report] in connection with his book.

Over the last several years there have been a number of high-profile arrests of police and military officials over alleged coups in Turkey. The trial for 33 Ergenekon defendants opened [JURIST report] in June. In March, the Turkish government indicted the 33 defendants [JURIST report] on charges of attempting to overthrow the government and establish military rule. Earlier that week, Turkish police detained 20 people [JURIST report] in connection with the Ergenekon plot. In early March, Turkish prosecutors charged [JURIST report] an army general and a state prosecutor with belonging to Ergenekon and plotting to overthrow the AKP. In February, more than 40 military officers were arrested and charged in a separate coup attempt [JURIST report], the so-called Sledgehammer plot [Al Jazeera backgrounder], to provoke a military confrontation with Greece and take advantage of the ensuing chaos. Trials against the Ergenekon group started [JURIST report] two years ago and nearly 200 people have been charged in connection with it.




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California lawmakers urge federal government to repeal Defense of Marriage Act
Christian Ehret on August 24, 2010 11:32 AM ET

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[JURIST] The California Senate voted 22-12 [roll call vote] Monday in favor of a joint resolution [AJR 19 text; materials] to urge the federal government to repeal the Defense of Marriage Act (DOMA) [text; JURIST news archive]. Among other concerns, the resolution states that, under the law, same-sex couples legally married in the state are prevented from accessing the federal rights and benefits afforded to opposite-sex spouses, including the right to sponsor a spouse for immigration, the right to Social Security survivors benefits, the right to health insurance from a spouse who is federally employed and the right to jointly file income taxes. Additionally, the resolution raises the concern that workers in the state must pay federal income taxes on any health benefits provided to a same-sex spouse while benefits conferred to opposite-sex spouses are not taxed.

Although introduced in the California legislature last year, the passage of the resolution follows the recent ruling [opinion, PDF; JURIST report] that Proposition 8, the state's ban on same-sex marriage, is unconstitutional. Last month, the DOMA was struck down [JURIST report] by a Massachusetts federal judge in two separate cases. In one case, Judge Joseph Tauro held that the DOMA violated the principles of equal protection [opinion, PDF] embodied in the Fifth Amendment Due Process Clause as a matter of law In the other case, Judge Tauro found [opinion, PDF] that the DOMA violates states' Tenth Amendment right to define marriage.




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State Department releases UN human rights review
Hillary Stemple on August 24, 2010 10:42 AM ET

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[JURIST] The US State Department (DOS) [official website] on Monday released a report [text, PDF; press release] on human rights in the US, which was presented to the UN High Commissioner on Human Rights (UNHCHR) [official website] last week. The report was submitted in order to comply with the rules of the UN Human Rights Council (UNHRC) [official website], which require council members to conduct an evaluation of the human rights situation in their countries every four years. The US was elected to a seat on the UNHRC for the first time in December, after the announcing they were seeking a seat [JURIST reports] in April 2009. In the report, the DOS acknowledged the US government's historical struggle with some human rights issues including gender and racial equality, but noted the progress made in both areas. The report credits the US system of government as being a system that promotes improvement and protects against human rights abuses. The DOS also stressed the US government's ongoing commitment to promoting human rights:
As we look to the future, the United States stands committed to the enduring promises of protecting individual freedoms, fairness and equality before the law, and human dignity promises that reflect the inalienable rights of each person. Our commitment to the rights protected in our Constitution is matched by a parallel commitment to foster a society characterized by shared prosperity. Finally, we are committed to the idea that the values behind the domestic promises articulated in our Constitution should also guide and inform our engagement with the world.
In addition to reaffirming the US government's commitment to human rights, the report addressed substantial steps taken by the government in specific policy areas including LGBT rights, minority rights, gender equality, international human rights obligations and immigration. The American Civil Liberties Union (ACLU) [advocacy website] praised [press release] the Obama administration's willingness to engage in a dialogue on human rights, but called for more concrete actions in both domestic and foreign policy. The US is scheduled to formally present the findings of the report to the UNHRC in November.

One area cited by the DOS as needing improvement was immigration [JURIST news archive]. The report specifically addressed the need for comprehensive immigration reform, as well as steps being taken by the federal government to oppose the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. The US Department of Justice (DOJ) [official website] filed a lawsuit against the law last month, and a federal judge issued a preliminary injunction [JURIST reports] against several of its provisions. The DOJ argues that the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country." The DOJ also claims that the federal government has preeminent authority to regulate immigration matters and that the enforcement of the Arizona law is counterproductive to the national immigration policy and will interfere with foreign relations with Mexico and other countries. The law has been widely criticized as unconstitutional and allegedly legalizing racial profiling. Also in July, the American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] in support of a lawsuit filed by the ACLU. In the brief filed in support of the US, the ABA also argues that the Arizona law would interfere with law enforcement officers' public safety functions and infringe on both citizens' and noncitizens' constitutional rights by placing upon them the burden of proving their citizenship.




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Switzerland activists move to reinstate death penalty
Carrie Schimizzi on August 24, 2010 9:08 AM ET

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[JURIST] Capital punishment advocates in Switzerland can begin collecting signatures in support of a referendum [text, in German] to reinstate the death penalty [JURIST news archive] for those convicted of murder, the Federal Chancellery [official website, in German] announced Tuesday. Campaigners for the referendum have until February 24, 2012, to accumulate at least 100,000 signatures in support of the measure in order to force a national popular vote. Capital punishment was abolished from Switzerland's criminal code in 1942 and remained part of the country's military laws until 1992. The last military execution, however, took place in 1944. The Swiss Federal Council has yet to investigate whether the referendum is constitutionally legal or violates international law [JURIST news archive].

Despite the continued use of the death penalty in some countries, there is a growing movement toward international abolition. Earlier this year, Amnesty International (AI) [advocacy website] reported [JURIST report] the number of countries using the death penalty dropped [report, PDF] in 2009. According to the report, more than 700 people were executed last year in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. AI's figures exclude the estimated thousands of executions conducted in China [press release], where the government refuses to release death penalty statistics. AI challenged China and other nations to disclose information about executions and condemned all forms of capital punishment. More than two-thirds of the world's countries have abolished the death penalty in law or in practice.




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Federal judge blocks federal funding for embryonic stem cell research
Zach Zagger on August 24, 2010 7:28 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] issued a preliminary injunction [opinion text] Monday blocking federal funding for embryonic stem cell [JURIST news archive] research. Last year, President Barack Obama signed an executive order [JURIST report] permitting federal funding for some forms of embryonic stem cell research. Despite the executive order, Chief Judge Royce Lamberth held that evidence showed the plaintiffs were substantially likely to prevail based on existing law. The Balanced Budget Downpayment Act of 1996 contained a rider known as the Dickey-Wicker Amendment, which restricted funding for "research" where an human embryo is destroyed. The Obama administration argued that "research" under the amendment was ambiguous and did not apply to current embryonic stem cell research in which stem cells are taken from fertility clinic embryos that are no longer needed and would have been discarded. The court rejected that argument, holding that the Dickey-Wicker Amendment is unambiguous and federal funding for any kind of embryonic stem cell research is in clear violation of this Amendment. The ruling came as a shock [NYT report] to scientists who believed that, after Obama's executive order, the matter was settled. Based on the judge's reasoning, all forms of research involving embryonic stem cells could be illegal, even research that was allowed under the more restrictive policies of former president George W. Bush.

The case had originally been dismissed for lack of standing last October but was reinstated [JURIST reports] in June with only plaintiffs who claimed their their ability to obtain funding for adult stem cell research was harmed by increased competition for federal funds after they were permitted to also be used for embryonic stem cell research. Those new guidelines reversed previous rules that limited government funding of embryonic stem cells to only cell lines that were in existence as of August 2001. Despite pressure from the scientific community, the previous administration refused similar changes to funding guidelines. In 2007, then-president Bush vetoed [JURIST report] the Stem Cell Research Enhancement Act of 2007 [S 5 materials], which was intended to relax funding restrictions on embryonic stem cell research. The administration rejected the bill, saying it would compel taxpayers to support the destruction of human embryos. In 2006, Bush vetoed a previous version [JURIST report] of the Stem Cell Research Enhancement Act, which was passed by the Senate to remove restrictions on embryonic stem cell research, saying he would not provide federal funding for stem cell research because many consider the destruction of embryos to be murder.




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Engineering firm reaches settlement over Minneapolis bridge collapse
Matt Glenn on August 23, 2010 2:51 PM ET

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[JURIST] Engineering firm URS Corporation [corporate website] agreed Monday to a $54.2 million settlement [RKMC press release; URS press release] stemming from the 2007 Minneapolis bridge collapse [MPR backgrounder] that killed 13 people. Victims sued URS for negligence, claiming that the company, which has a contract to inspect Minnesota's bridges, should have foreseen that the bridge could collapse due to increased weight from construction projects. Under the agreement, URS's insurer will pay $48.6 million [Minneapolis Star Tribune report] to victims injured in the collapse, $2.268 million to insurance companies that covered property damage and workers compensation claims, and $1.5 million towards a memorial for victims of the collapse. URS did not admit liability in its press release, noting that the company was not involved in the design, construction or renovation of the bridge. The company stated, "URS believes it is in the best interest of the Company and its shareholders to resolve this matter and avoid the cost and distraction of protracted litigation."

URS agreed to the settlement before a judge could rule on whether URS could be held liable for punitive damages as plaintiffs argued last month [MPR report], since, plaintiffs claimed, URS knew that the bridge could collapse. In March, URS reached a $5 million settlement [MPR report] with the state of Minnesota. In 2009, URS claimed that Minnesota was liable [MPR report] for the collapse and that the state had denied its advice to repair the bridge. The state sued URS [MPR report] for negligence and breach of contract in July 2009.




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Independent $20 billion oil spill victim fund begins processing claims
Ann Riley on August 23, 2010 1:24 PM ET

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[JURIST] The administrator of the Gulf Coast Claims Facility (GCCF) [official website] announced Monday that the GCCF is in service and will begin processing claims [press release] from the $20 billion fund established by British Petroleum (BP) [corporate website] to aid victims of the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. The GCCF, an independent facility, was implemented in June to manage claims from the fund after negotiations [JURIST report] between BP and the US Department of Justice (DOJ) [official website]. BP announced last week that it paid out $368 million in claims [press release] before transferring responsibility to the GCCF. All current claims filed with the BP Claims Process [official website] have been transferred to the GCCF for review, but, in order to receive payments, claimants will be required to file new forms with the GCCF. The GCCF administrator, Kenneth Feinberg [WP profile], appointed earlier this month by the White House to manage claims from the fund, stressed the speed with which the GCCF would begin processing claims:
I want to make sure the people in the Gulf understand we will not let you go out of business or lose your home. The number one priority of the GCCF is to assist the people in the Gulf. Now that the claim centers are open and ready for business, the goal will be to get the emergency six month payment checks out the door, within 48 hours for individuals, after receipt of the claim form and sufficient supporting documentation and no more than seven days for businesses, after receipt of claim form and supporting documentation, and help people on the path to rebuilding their lives.
BP also appointed two trustees to administer the fund, former US district judge for the Southern District of New York John Martin and Washington University Law School dean Kent Syverud [official profile].

Numerous lawsuits are pending against BP in connection with the Deepwater Horizon spill. Earlier this month, Alabama Attorney General Troy King [official website] filed a lawsuit [JURIST report] against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, US Attorney General Eric Holder [official website] announced that the DOJ is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers, including the Clean Water Act and the Oil Pollution Act of 1990 [materials].




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China considering reducing death penalty crimes
Carrie Schimizzi on August 23, 2010 10:37 AM ET

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[JURIST] A proposed amendment to China's criminal law that would reduce the number of crimes punishable by death [Xinhua report] was presented Monday to the Standing Committee of the National People's Congress (NPC) [official website, in Chinese]. The current criminal code in China outlines 68 criminal offenses that carry the death penalty. If adopted, the proposed legislation would eliminate death sentences for 13 non-violent economic crimes, including smuggling and fraud-related activities, and would be the first time the number of crimes carrying the death penalty has been reduced since the enactment of China's criminal law in 1979. The amendment also proposes expanding capital punishment exceptions to criminals over the age of 75. Previously, only pregnant women and criminal offenders under the age of 18 were exempt from the death penalty. The proposed legislation is the latest move by the Chinese government to reduce the number of death sentences ordered by the country's courts.

Earlier this year, the Supreme People's Court of China [official website, in Chinese] issued new guidelines for limiting capital punishment [JURIST report] in Chinese courts. The guidelines instruct courts to issue the death penalty only to those who commit "extremely serious" crimes. However, the guidelines also state that reprieves should be issued in certain cases as allowed by law. The consistent use of the death penalty in China has been met with significant criticism from anti-death penalty advocates. Anti-death penalty group Hands Off Cain [advocacy website] has said that China, Iran and Iraq account for more death penalties [advocacy report] than any other country. According to the group, in 2009, China executed about 5,000 people, or 88 percent of the world's total.




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Iran judicial officials suspended over detained protester deaths
Carrie Schimizzi on August 23, 2010 9:30 AM ET

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[JURIST] A military court in Iran has ordered the suspension of three top judiciary officials in connection with last year's torture deaths of three detained protesters, the Mehr News Agency [official website, in Persian] reported Monday. The three victims, Mohammad Kamrani, Amir Javadi-far and Mohsen Ruholamini, were tortured and beaten to death at the Kahrizak detention center after being arrested during anti-government protests that followed last year's disputed presidential election [JURIST news archive]. According to an anonymous source, three unidentified officials at the Tehran prosecutor's office have been suspended and stripped of their judicial immunity after a lengthy investigation into the case. The move clears the way for the three officials to face trial.

A previous Iranian parliamentary inquiry had determined Tehran prosecutor Saeed Mortazavi was responsible [JURIST report] for the deaths, but he has yet to be formally charged with any crime. In June of this year, an Iranian military court sentenced two men to death [JURIST report] by hanging for the killings. Nine others were sentenced to prison terms, and one suspect was acquitted. The defendants, whose trial began [JURIST report] in March, included of 11 policemen and one civilian. Observers have accused the Iranian government of conducting the trial as a mere political move.




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Bangladesh court rules against mandatory religious clothing
Erin Bock on August 22, 2010 4:50 PM ET

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[JURIST] The Bangladeshi Supreme Court [official website] ruled Sunday that workplaces and schools cannot force individuals to wear religious clothing such as veils and skull caps. The court found that wearing religious clothing is an individual choice and cannot be made mandatory [AFP report], and requiring individuals to wear religious clothing is a human rights violation [AsiaNews report] in contravention of the Bangladeshi Constitution [text]. The ruling comes after an incident in Northern Bangladesh where a college principal was forcing female students to wear veils. In April, the high court ruled that educational institutions could not force female employees to wear veils. The ruling came after an incident where a government official chastised a female headmistress for not wearing a scarf or veil during a staff meeting. Bangladeshi human rights groups applauded this most recent decision, while others argued it is an attack on Islamic values.

The Bangladeshi high court's decision comes in the midst of other countries attempting to formally ban Islamic burqas [JURIST news archive] and other full face veils. Last month, the French National Assembly [official website, in French] voted 336-1 to approve a bill [JURIST report] that would make it illegal to wear burqas in public. The bill would require women who choose to wear the veil in public to show police their face and, if they refuse, they can be forced to attend citizenship classes or be charged a $185 USD fine. Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish] rejected a similar proposal [JURIST report] to ban the burqa by a vote of 183-162 last month. UK Immigration Minister Damian Green [official profile] indicated last month that Britain's coalition government would not seek to support a similar ban in the UK [JURIST report]. In May, Australian state lawmakers voted 26-3 against a ban [JURIST report]. In April, the Belgian House of Representatives [official website, in French] voted 136-0 to approve a burqa ban [JURIST report]. European Parliament Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide ban [JURIST report] in May, calling the face coverings a "mobile prison."




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Iraqi convicted of killing UK aid worker escapes prison
Daniel Makosky on August 22, 2010 3:29 PM ET

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[JURIST] Iraqi Deputy Justice Minister Busho Ibrahim disclosed Sunday that Ali Lutfi Jassar al-Rawi, convicted [JURIST report] last year of the 2004 kidnapping and murder of British aid worker Margaret Hassan [Times Online obituary; JURIST news archive], escaped custody last September. An investigation confirmed earlier this month that al-Rawi fled [Reuters report] almost one year ago from Abu Ghraib [JURIST news archive], where he was serving a life sentence. The inquiry was conducted after several attempts to convene al-Rawi's retrial, secured on appeal, were rescheduled when authorities were unable to locate him. The trial, most recently set to begin Sunday, has now been postponed until September 19. The court may consider trying al-Rawi in absentia if he is not captured.

Hassan, who had Irish, British and Iraqi citizenship, was the director of the Iraq office of CARE International [advocacy website], where she worked with combating public health issues. After being kidnapped, a videotape surfaced [JURIST report] that appeared to show her being shot to death. Her body has not been found. In 2006, Mustafa Salman was charged, convicted and sentenced to life in prison for aiding and abetting [JURIST report] Hassan's kidnappers after her personal effects were found in his home.




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US military judge rejects Khadr torture claims
Daniel Makosky on August 21, 2010 1:59 PM ET

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[JURIST] US military judge Army Colonel Patrick Parrish rejected [ruling, PDF] claims by Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] that his confession was a byproduct of torture, in a ruling released Friday. Khadr's lawyers had argued [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. Parrish rejected the suppression motion, finding:
There is no credible evidence the accused was ever tortured as that term is defined under M.C.R.E. 304(b)(3), even using a liberal interpretation considering the accused's age. While Interrogator #1 told the accused a story about the rape of an Afghan youth in an American prison, there is no evidence that story caused the accused to make any incriminating statements then or in the future. In fact, the credible evidence is that the accused started to make incriminating statements only after he learned the Americans found the videotape at the compound where the firefight took place which shows the accused and others making improvised explosives and placing them along the roadside at night.
Parrish also cited Khadr's refusal to testify and a lack of evidence corroborating his affidavit as factors in the determination. The ruling will allow for Khadr's inculpatory statements to be admissible as evidence, as well as a video that Khadr's lawyers claimed was found as a result of intelligence improperly obtained from Khadr. The trial is the first contested military commission [JURIST news archive] trial under the Obama administration. If Khadr is found guilty, he could face a life sentence.

The trial was suspended last week two days after it began [JURIST reports] due to a medical emergency involving Khadr's lawyer, Lt. Colonel Jon Jackson. Khadr pleaded not guilty to charges of murder and terrorism [JURIST report] for allegedly throwing a grenade that killed one US soldier and injured another when he was 15. UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy [official profile] criticized the proceedings [press release], arguing the trial would set a dangerous precedent for child soldiers [CFR backgrounder] worldwide. She explained that "[c]hild soldiers must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation or restorative justice." The trial has also been criticized by Canadian Senator Romeo Dallaire (L-QC) [official website], who has questioned the legitimacy of the proceedings. The US Supreme Court refused to block the trial earlier this month, and the US District Court for the District of Columbia in July declined to lift the stay [JURIST reports] on his habeas corpus petition pending the conclusion of the trial.




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Obama administration urges return to prison for Lockerbie bomber
Andrea Bottorff on August 21, 2010 11:37 AM ET

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[JURIST] The Obama administration on Friday urged Libyan authorities to return convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC profile; JURIST news archive] to a Scottish prison to serve the remainder of his sentence. US Secretary of State Hilary Clinton [official website] released a statement explaining the US position [text] on al Megrahi's situation:
The United States continues to categorically disagree with the decision made by the Scottish Executive to release al-Megrahi and return him to Libya last year. As we have expressed repeatedly to Scottish authorities, we maintain that al-Megrahi should serve out the entirety of his sentence in prison in Scotland. We have and will continue to reiterate this position to the Scottish and Libyan authorities.
During a press briefing, Assistant to The President for Counterterrorism and Homeland Security John Brennan [WP profile] briefing also condemned [press briefing] al Megrahi's release and extended condolences to the victims' families. The announcements come one year after al Megrahi was released [JURIST report] from prison on compassionate grounds because doctors predicted he only had three months to live. Al Megrahi was then returned to his native Libya, where he is sill living, and experts have suggested that he could continue living for a year or more [Daily Mail report].

Earlier this month, the opposition Scottish Labour Party [party website] called for the publication of all medical evidence [JURIST report] related to al Megrahi's release. Last month, US lawmakers called for an investigation [JURIST report] into the role that oil company British Petroleum (BP) [corporate website] may have played in al Megrahi's release. Al Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Al-Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland that killed all 259 on board [memorial website] including 180 Americans.




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EU court temporarily exempts Inuit from seal hunting ban
Hillary Stemple on August 20, 2010 3:12 PM ET

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[JURIST] The EU General Court [official website] has issued a temporary injunction exempting Inuit hunters from Canada and Greenland from an EU ban on seal hunting that went into effect on Friday. Regulation (EC) No 1007/2009 [text, PDF] recognizes seals as "sentient beings that can experience pain, distress, fear and other forms of suffering," and bans all imports containing seal products. In January, representatives of Canada's Inuit population filed suit in the EU General Court [JURIST report] challenging the ban on seal products, arguing that the hunting represented a traditional aspect of the Inuit's lifestyle. The plaintiffs in the case made the court decision public [AFP report] on Thursday, although the interpretation of the exemption is still being debated. A spokesperson for the EU's executive branch indicated that the exemption applied only to the plaintiffs in the lawsuit, while a lawyer for the plaintiffs stated that he believed the regulation was effectively suspended. The EU has been given until September 7 [AP report] to respond to the injunction.

The Canadian government took action [press release] against the ban in November, initiating the World Trade Organization (WTO) [official website] dispute resolution process by requesting consultations. The ban follows extensive public pressure [CBC report] to end seal hunting by groups citing humanitarian considerations. More narrow European restrictions imposed in 1983 caused the industry to suffer a sharp decline. Commercial seal hunting is an economic and cultural staple for the Inuit, who contend that their methods are necessary and humane.




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Dutch prosecutors open investigation into officer conduct in Srebrenica
Sarah Miley on August 20, 2010 3:02 PM ET

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[JURIST] The Dutch National Prosecution Office [official website, in Dutch] announced Friday that it will open an investigation [press release, in Dutch] into whether Dutch peacekeeping soldiers should face criminal charges for their actions during the 1995 Srebrenica massacre [JURIST news archive] in Bosnia. The inquiry was commenced after relatives of victims began proceedings against three soldiers for failing to protect their family members by forcing the victims out of a UN-designated "safe area" [resolution materials] and turning them over to Bosnian Serbs. Srebrenica was under protection of Dutch soldiers serving under the UN when Bosnian Serbs attacked, killing more than 8,000 Bosnian Muslims. The relatives claim that, by handing over their family members to the insurgents, the soldiers colluded in genocide [Reuters report]. The prosecution office stated that the investigation would take several month to complete, at which time prosecutors will determine whether to pursue criminal charges.

In March, The Hague Appeals Court [official website, in Dutch] upheld [JURIST report] the UN's immunity from prosecution by rejecting claims brought by relatives of Srebrenica victims, known as the Mothers of Srebrenica. The accusations were similar to those currently faced by the Dutch solders, claiming the UN failed to protect their family members in the designated "safe area." The court found that immunity is essential to the UN's ability to carry out its duties and that the Dutch, acting as UN peacekeepers, could not be held responsible. The decision upheld the district court's 2008 decision to dismiss the claims [JURIST report]. The Mothers of Srebrenica have vowed to appeal the case to the Netherlands Supreme Court and the European Court of Justice (ECJ) [official websites] if necessary.




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Thailand court approves US extradition of suspected Russia arms dealer
Hillary Stemple on August 20, 2010 11:10 AM ET

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[JURIST] An appeals court in Thailand ruled Friday that accused Russian arms dealer Viktor Bout [BBC profile] can be extradited to the US to face charges [indictment, PDF] including conspiracy to kill US nationals and conspiracy to provide material support to a proscribe terrorist group. The court's decision overturned a decision issued by the Bangkok Criminal Court last August, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. The appeals court ruled that the Revolutionary Armed Forces of Colombia (FARC) [GlobalSecurity backgrounder], the group Bout is accused of supporting, is a cognizable terrorist group [Guardian report] under Thai law and that Thailand is obligated to honor their extradition treaties with the US. Lawyers for Bout argued that his safety would be in jeopardy in the US and that he would be unable to receive a fair trial. They have also indicated that they will continue fighting Bout's extradition by filing an appeal with the Thai government. A spokesperson for the US Department of Justice (DOJ) [official website], praised [statement] the court's decision:
We are extremely pleased that the Appeals Court in Thailand has granted the extradition of Viktor Bout to the United States on charges of conspiring to sell weapons to a terrorist organization for use in killing Americans. We have always felt that the facts of the case, the relevant Thai law and the terms of our bilateral extradition treaty clearly supported the extradition of Mr. Bout on these charges.
He also indicated that Bout's prosecution is a top priority for the DOJ. Russian officials have questioned the role of the US in lobbying [CNN report] for the court's decision and indicated that Russia will continue working to obtain his release. Bout must be extradited to the US within three months or be released from Thai custody.

Last July, Russian organized crime leader and suspected weapons trafficker Semyon Mogilevich [FBI profile], who is wanted by the US, was released [JURIST report] by a Russian court. Mogilevich is unlikely to stand trial on US racketeering, securities fraud, wire fraud, mail fraud and money laundering charges, as the US and Russia do not have an extradition treaty. In March 2009, Armenian international arms dealer Artur Solomonyan was sentenced to 22 years in prison [JURIST report] for arranging to sell shoulder-fired surface-to-air missiles, rocket-propelled grenades and other Russian-made weaponry to a confidential informant posing as an al Qaeda operative.




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Guatemala ex-president ordered to stand trial for embezzlement
Hillary Stemple on August 20, 2010 9:12 AM ET

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[JURIST] A Guatemalan judge ruled Wednesday that former president Alfonso Portillo [CIDOB profile, in Spanish] and two of his former ministers will stand trial on charges of embezzlement. Portillo, president of Guatemala from 2000-2004, is accused of diverting approximately USD $15 million in funds from the Ministry of Defense. The ministers of finance and defense who served under Portillo face similar charges. The judge issued his ruling after the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] provided sufficient evidence to the court of Portillo's corruption. The judge's determination was also aided by evidence provided by the French government [AFP report, in Spanish] showing that bank accounts were established in the names of members of Portillo's family in order to launder the money. The documentation also showed that Portillo transferred money between accounts in the US, France, Luxembourg, Switzerland and Liechtenstein. Lawyers for the men maintain their innocence, arguing that they were acting within the country's constitutional limits. The trial is scheduled to begin in September.

In March, a Guatemalan court ruled that Portillo can be extradited to the US [JURIST report] to face charges of money laundering. He is accused of taking $15.8 million from funds designated for the Guatemalan Ministry of Defense and siphoning it into bank accounts in Europe and Bermuda. Portillo was arrested [BBC report] in January following an arrest warrant issued by Guatemala [JURIST report] based on the US indictment. In 2008, Portillo was extradited [JURIST report] back to Guatemala from Mexico, where he had fled after his immunity expired along with his term in office. The extradition order was first signed [JURIST report] in 2006, but Portillo challenged it until the Mexican Supreme Court [official website, in Spanish] ruled against him in January 2008. Portillo will have to stand trial in Guatemala [CP report] before he can be extradited to the US.




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Rights groups urge Cameroon to decriminalize same-sex acts
Ann Riley on August 20, 2010 8:41 AM ET

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[JURIST] Human Rights Watch (HRW) and Alternatives-Cameroun [advocacy websites] on Thursday urged the government of Cameroon [BBC backgrounder; JURIST news archive] to decriminalize consensual sexual acts between adults of the same sex [press release]. Under Article 347 of the Cameroon Penal Code [DHS backgrounder], same-sex acts are subject to a punishment of six months to five years in prison. The groups called on the Cameroon government to implement the July recommendations [report, DOC] of the UN Human Rights Committee (UNHRC) [official website]. After a periodic review [press release] of Cameroon's implementation of the International Covenant on Civil and Political Rights (ICCPR) [text], the UNHRC urged Cameroon to immediately decriminalize consenting same-sex acts, address negative social stigmas of same-sex relationships and express its intolerance of discrimination, harassment and violence because of sexual orientation. The UNHRC also expressed concern that the criminalization of same-sex acts impedes the effectiveness of HIV and AIDS prevention programs. Director of Alternatives-Cameroun Steave Nemande cited the need to support sexual tolerance and education programs:
By implementing this recommendation, Cameroon would do the bare minimum to realize the fundamental human rights enshrined in its national constitution. To save lives, the government should immediately start implementing effective education programs to combat HIV/AIDS.
In June, HRW and Alternatives-Cameroun told the UNHRC that the Cameroon government's discriminatory policies deny access to HIV prevention programs and health services, treatment and care to those engaging in same-sex acts.

According to a 2009 Amnesty International (AI) [advocacy website] report [text, PDF; abstract], the Cameroon government participated in and encouraged unlawful executions, torture and other human rights violations [JURIST report]. The report alleges that such violations have been taking place for more than 10 years and may increase with the current global economic crisis and continued political unrest. According to the report, the actions by many governmental officials violate national law as well as the ICCPR. The ICCPR guarantees the right of equal treatment and the right of equal protection under the law, without discrimination. In 1994, the UNHRC held in Toonen v. Australia [case materials] that sexual orientation is included in the protections against discrimination in the ICCPR.




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SEC charges New Jersey with securities fraud
Ann Riley on August 20, 2010 7:24 AM ET

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[JURIST] The US Securities and Exchange Commission (SEC) [official website] announced [press release] Wednesday that it has charged [order, PDF] the state of New Jersey with securities fraud for failing to disclose to municipal bond investors that it was underfunding two of the state's largest pension plans. Between August 2001 and August 2007, New Jersey sold more than $26 billion in municipal bonds and in the 79 offerings misrepresented material information in regard to the Teachers' Pension and Annuity Fund (TPAF) and the Public Employees' Retirement System (PERS) [official websites] in violation of Sections 17(a)(2) and 17(a)(3) of the Securities Act of 1933 [text, PDF; Cornell LII backgrounder]. New Jersey failed to disclose that it was underfunding TPAF and PERS in official preliminary disclosures, official statements and continuing disclosures, while creating a false impression that the pension plans were being adequately funded. SEC Chief of the Municipal Securities and Public Pensions Unit Elaine C. Greenberg stated:
Issuers of municipal bonds must be held accountable when they seek to borrow the public's money using offering documents containing false and misleading information. New Jersey hid its financial challenges from the very people who are most concerned about the state's financial health when investing in its future.
The SEC initiated its inquiry into New Jersey's bond offerings in April 2007, and, following the investigation, the state disclosed the inquiry on subsequent bond disclosure documents. Specifically, New Jersey omitted pertinent information regarding 2001 legislation [A3506 text] that increased retirement benefits for employees and retirees enrolled in TPAF and PERS and established Benefit Enhancement Funds (BEF) to cover the costs associated with the increased benefits. Also, the state did not adequately disclose details regarding the use of a five-year "phase-in-plan" to begin making contributions to TPAF and PERS. According to the New Jersey Office of the Attorney General [official website], in the Spring of 2007, the State took remedial actions [press release] set forth in the SEC order by employing an independent counsel to advise the State of its disclosure obligations and update and clarify pension disclosures on bond offering documents. Also, New Jersey established formal disclosure policies, procedures, and training programs and created a committee to oversee the disclosure process. New Jersey, the first state ever charged with securities fraud by the SEC, has agreed to settle the case without admitting or denying the findings.

In a similar case, the SEC sued [JURIST report] five former San Diego city officials in 2008, alleging they committed securities fraud by failing to disclose funding shortfalls in the city's pension and health care plans to potential buyers and sellers of San Diego's municipal bonds. An independent audit conducted in 2006 uncovered numerous securities law violations [JURIST report] and recommended that an independent monitor supervise the San Diego pension system and report back to the SEC, and that city officials be required to personally certify the accuracy of pension reports, a requirement that the Sarbanes-Oxley Act [text, PDF; SEC materials] imposed on corporations in the wake of the Enron scandal [JURIST news archive]. The audit also criticized outside consultants hired by San Diego to administer the pension plan for failing to fully investigate problems with the pension system.




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Former Sri Lanka army chief to appeal conviction
Hillary Stemple on August 19, 2010 3:13 PM ET

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[JURIST] Former Sri Lankan army chief Sarath Fonseka [BBC profile; JURIST news archive] said Thursday that he will appeal his recent conviction [JURIST report] on charges of engaging in politics while on active duty, but that he has no faith in the government, which he called a dictatorship. Fonseka, who remains in custody, stated that he has no faith in the judiciary and that he expects to be jailed [The Hindu report] following a second court-martial investigating army purchasing irregularities during his time as general of the army. He also called the court-martials a sham and indicated that he does not expect his appeal to be successful, but that he would proceed with the appeal [AP report] to prevent the government from considering it an admission of guilt. The court-martial that concluded last week sentenced Fonseka to a dishonorable discharge. He was stripped of his rank and medals on Saturday after Sri Lankan President Mahinda Rajapaksa [official profile; JURIST news archive] ratified the decision. The second court-martial is expected to begin [AFP report] on Saturday.

Fonseka is also fighting charges in the High Court of Sri Lanka for allegedly provoking violence and bringing disrepute to the government [JURIST report] in relation to statements made to the Sunday Leader [media website] newspaper. Fonseka suggested that the government of Rajapaksa ordered the killing of surrendering rebel leaders during the Sri Lankan civil war [JURIST news archive]. In April, Fonseka's trials were postponed [JURIST report] to allow the Court of Appeals of Sri Lanka [official website] to examine the legality of the court-martials.




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Nebraska AG agrees to permanent injunction of state abortion law
Hillary Stemple on August 19, 2010 1:21 PM ET

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[JURIST] Nebraska Attorney General Jon Bruning [official website] announced [press release] Wednesday that he has agreed to a permanent injunction of a Nebraska abortion law [LB 594 materials] because he believes there is little chance that the law will withstand a court challenge. The law, known as the Women's Health Protection Act, would have required physicians to evaluate patients to determine that their choice to have an abortion [JURIST news archive] was voluntary and to inform the patients of all risk factors and complications [LB 594 text] that have been statistically associated with abortion and published in peer-reviewed journals 12 months prior to the pre-abortion evaluation, as well as earlier studies. A lawsuit challenging the constitutionality of the law was filed [complaint, PDF; JURIST report] in June by women's rights group Planned Parenthood of the Heartland [advocacy website] and a federal judge issued a preliminary injunction [JURIST report] last month prohibiting the law from going into effect. In issuing the injunction, Judge Laurie Smith Camp indicated that she believed the lawsuit would likely succeed on the merits because the law would require screenings that may be impracticable to perform and it would create "substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska." She also stated that the law, if applied literally, would "require medical providers to give untruthful, misleading and irrelevant information to patients," which violates the First Amendment [text] rights of the physicians performing the services. Bruning stated that he agreed with Smith's determination that the law would likely be found unconstitutional and that the state would not waste any more resources on a challenge they were likely to lose. Nebraska legislators who supported the law have indicated they will attempt to pass a constitutional version of the bill during the next legislative session.

Several state legislatures have acted recently to place restrictions on women's access to abortion. In June, Florida Governor Charlie Crist [official website] vetoed a bill [JURIST report] that would have required women seeking an abortion to undergo an ultrasound or listen to a detailed description of the fetus before the procedure would be performed. In May, Oklahoma lawmakers approved a bill [JURIST report] requiring women seeking an abortion to complete a questionnaire containing information on marital status, reason for seeking the abortion and whether the pregnancy is the result of rape or incest. In April, the Nebraska legislature approved a bill prohibiting abortions at or past 20 weeks [JURIST report] on the theory that a fetus can allegedly feel pain following that point. Advocacy groups have criticized the laws and indicated they will challenge them in court.




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Rights groups urge AG to act on proposed prison rape elimination guidelines
Jaclyn Belczyk on August 19, 2010 1:00 PM ET

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[JURIST] Prisoner rights advocates on Tuesday urged US Attorney General Eric Holder [official profile; JURIST news archive] to act quickly to implement proposed guidelines to eliminate prison rape [JURIST news archive]. Speaking at a meeting at the National Press Club [organization website], Prison Fellowship [advocacy website] vice president Pat Nolan said that implementing proposals submitted last year [JURIST report] by the National Prison Rape Elimination Commission (NPREC) [official website] could significantly reduce instances of prison rape [AP report]. A broad coalition of advocacy groups sent a letter [text] to Holder earlier this month urging him to, "make a priority of completing [his] review and adopt the standards as swiftly as possible." Earlier this year, Holder told Congress that he hopes to put new standards in place soon, but the US Department of Justice (DOJ) [official website] has not provided a definite timeline or details on what proposals will be implemented.

Rape and other forms of sexual abuse have been a recurring issue in the US prison system. Last year, the US Court of Appeals for the First Circuit [official website] ruled [opinion text; JURIST report] that a Massachusetts regulation prohibiting prisoners from receiving sexually explicit mail is constitutional. The Massachusetts prison commissioner defended the regulation on the grounds that it was designed to promote prison safety and security. The DOJ reported [text, PDF] in 2006 that sexual violence in US prisons often goes unreported [JURIST report] because victims fear further abuse or do not trust prison staff. In 2005, the DOJ released its first report [text, PDF; JURIST report] on prison rape in accordance with the Prison Rape Elimination Act of 2003 [DOJ backgrounder], but admitted that most incidents were probably never reported and that their numbers could not be reliably estimated. The NPREC was created pursuant to the Prison Rape Elimination Act, which called for the development of national standards for correctional facilities to eliminate prison rape.




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UK charity commission rules adoption agency cannot discriminate against gay couples
Hillary Stemple on August 19, 2010 11:47 AM ET

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[JURIST] The UK Charity Commission [official website] ruled [opinion, PDF; press release] Thursday that the Catholic social services agency Catholic Care [agency website] may not restrict its adoption services to married heterosexual couples. The commission's decision came after the UK High Court issued a judgment [JURIST report] in March instructing the commission to reconsider a previous ruling on the adoption service's practice. In its judgment, the court instructed the commission to consider the need to justify the discrimination under Article 14 of the European Convention on Human Rights [text] and the case law interpreting Article 14, which indicates there needs to be particularly convincing reasons for the discrimination. The commission concluded that, while Catholic Care provides an important service, the evidence presented before the commission did not provide sufficiently convincing reasons for the discrimination. In its ruling, the commission stated that the main interest to be considered in the case is the interest of the children waiting to be adopted and that they deserve the broadest pool of applicants possible. The commission concluded that, even if Catholic Care no longer facilitated adoptions, children who would have been placed through the service are still likely to be adopted through another agency. It also cited the court's finding that respect for religious views is not a justification for discrimination in this particular case, because adoptions are a public service. Andrew Hind, Chief Executive of the Charity Commission, noted the complexity and sensitive nature of the topic and that the prohibition on discrimination based on sexual orientation is "a fundamental of human rights law." A spokesperson for Catholic care indicated the organization's disapointment in the ruling [press release] and stated that they are considering other ways to support couples planning to adopt.

Same-sex adoption has been an issue not only in the UK, but also in other countries. Earlier this week, the Mexican Supreme Court upheld a Mexico City law [JURIST report] allowing adoptions by same-sex couples. In April, an Arkansas judge ruled that a state law prohibiting all unmarried couples from adopting violated the state constitution [JURIST report] because it effectively prevented same-sex couples from adopting or fostering children. In February, the US Court of Appeals for the Fifth Circuit ordered [JURIST report] the state of Louisiana to place the names of two fathers on the birth certificate of a boy born in that state but adopted by a same-sex couple in New York. In November, a French court ruled that a law prohibiting same-sex couples from adopting children in France is discriminatory [JURIST report] and ordered that a single woman be allowed to adopt. In September, Uruguay's Senate approved a bill [JURIST report] legalizing same-sex adoption in that country. In November 2008, a Florida judge ruled that state's ban on same-sex adoption was unconstitutional [JURIST report].




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ACLU files lawsuit over US citizen detention in UAE
Hillary Stemple on August 19, 2010 10:51 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Wednesday filed a lawsuit [complaint, PDF; press release] against a number of federal agencies, including the Department of Justice (DOJ), State Department (DOS), FBI and CIA, seeking information related to the detention of US citizen Naji Hamdan in the United Arab Emirates (UAE) in 2008. The suit was filed after the agencies failed to respond to a Freedom of Information Act (FOIA) [5 USC § 552] request for documentation related to his detention in the UAE. Hamdan contends that the US government was involved in his detention and torture by UAE officials, and his FOIA request sought information related to why he was detained and tortured. He maintains that the US government was involved in his torture, which included beatings and long periods of exposure to cold temperatures, because his interrogators asked him about subjects to which only the FBI would have had access. Hamdan also asserts that the US was involved in his torture because he was questioned by a person speaking only American English and wearing western clothing. The ACLU filed a FOIA request for access to the information in January 2009, and, after receiving no reply by any of the government agencies contacted, decided to proceed with the lawsuit. The US has never filed any charges against Hamdan.

Last October, the Federal Supreme Court of the UAE convicted Hamdan of engaging in terrorist activities [JURIST report] and sentenced him to 18 months in prison. Hamdan was released shortly after his conviction due to serving 14 months prior to his trial. He faced three separate charges of terrorism, including providing financial support for attacks against Israel and being connected to al Qaeda in Iraq. Although he confessed to engaging in terrorist activities, Hamdan consistently denied the charges, claiming his confessions were coerced through torture. The ACLU suspected the US government of pushing the case onto UAE officials because it did not have enough evidence to charge Hamdan. The ACLU asked for the US government to intervene [press release], but the request was denied in August 2009.




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Australia judge bans Muslim face veil during witness testimony
Hillary Stemple on August 19, 2010 9:15 AM ET

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[JURIST] A judge for the District Court of Western Australia [official website] ruled Thursday that a Muslim woman providing testimony before the court will not be allowed to cover her face and body with a niqab [JURIST news archive]. Judge Shauna Deane stated that it would be inappropriate for the woman to be completely veiled [AFP report] because it could affect the jury's ability to gauge her demeanor and determine the validity of her testimony. The witness, identified in court records as Tasneem, is scheduled to testify for the prosecution in a fraud case involving a Muslim women's college. The prosecution argued on behalf of Tasneem that she would be uncomfortable testifying without a veil [BBC report] and that it could affect her testimony. Defense lawyers argued that the jury should be able to watch the witness' facial expressions. Deane stated that, in making her decision, she considered the witness' right of religious expression and what would be most fair to everyone involved in the trial. She also suggested that the defense and prosecution work together [AP report] to minimize Tasneem's discomfort in appearing without a veil, possibly through video testimony. Deane also noted that her ruling should not stand as a legal precedent and that her decision was based only on the particular circumstances of this case.

The issue of the wearing of religious face veils while in a courtroom has been addressed by several jurisdictions. In 2008, a US federal judge dissmissed a lawsuit filed by a Muslim woman [JURIST reports] against a judge who asked her to remove her niqab in court. In 2006, the UK Asylum and Immigration Board informed immigration judges [JURIST report] that they should allow Muslim lawyers to wear veils in their courtrooms unless it interferes with the "interests of justice", as long as their clients approve and all parties to the proceedings can hear the representatives speak. Also in 2006, a Pakistani judge stated that female lawyers were forbidden to wear religious veils [JURIST report] in his courtroom and that they should dress in the manner required by their profession.




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ICTY orders independent investigation of witness intimidation at Seselj trial
Ann Riley on August 19, 2010 8:25 AM ET

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[JURIST] A spokesperson for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] said Wednesday that the court has ordered [text, PDF] an independent investigation [press briefing] into allegations that members of the Office of the Prosecutor (OTP) [official website] intimidated and pressured witnesses in the trial of Vojislav Seselj [case materials; JURIST news archive], a Serbian politician and former president of the Serbian Radical Party (SRS) [BBC backgrounder]. Spokesperson Christian Chartier noted that, following the independent investigation, due within six months, the court will determine if there are sufficient grounds to initiate contempt proceedings against investigators. According to statements sent to the court by Seselj, witnesses claimed that they were subject to sleep deprivation, pressured during interviews, blackmailed, threatened and offered illegal payments of money, and that their statements were not read before being signed. Chartier stated that the decision, not immediately publicized, was not made at the request of the defense, but was initiated by the court in June after alarming complaints by witnesses of intimidation. While not commenting on the current investigation, prosecutors have previously denied [AP report] allegations of witness intimidation.

In May, the ICTY appeals chamber affirmed the contempt conviction [JURIST report] of Seselj. Trial chamber II found Seselj guilty of contempt [JURIST report] last year for authoring a book revealing pertinent information about several key witnesses and sentenced him to 15 months in prison. The appeals chamber denied all eight of Seselj's grounds of appeal. Seselj's war crimes trial just resumed in January, after being delayed [JURIST reports] for nearly a year over fears that witnesses were being intimidated. He is currently being tried before trial chamber III on 14 counts of crimes against humanity and violations of the laws or customs of war. The ICTY had previously stripped Seselj of his right to defend himself after he failed to appear in court, despite an earlier appeals court ruling that he could represent himself [JURIST reports] provided he did not engage in courtroom behavior that "substantially obstruct[ed] the proper and expeditious proceedings in his case." Seselj is accused of establishing rogue paramilitary units affiliated with the SRS, which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict.




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Tenth Circuit finds memorial crosses along highways unconstitutional
Ann Riley on August 19, 2010 7:35 AM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] on Wednesday ruled [opinion, PDF] that crosses placed beside Utah highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. In 1998, the Utah Highway Patrol Association (UHPA) [non-profit website] erected 14 12-foot-high cross memorials displaying the fallen troopers' name, rank, badge number and the official UPH symbol. The memorials were paid with private funds, but most were placed on public lands. American Atheists [advocacy website] brought the suit to remove the crosses from state property. The UHPA argued that the memorial crosses conveyed "the simultaneous messages of death, honor, remembrance, gratitude, sacrifice, and safety." The court found that the cross is specific to Christianity, stating:
[W]e conclude that the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity. ... [T]he fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP - both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.
The court remanded the case to the US District Court for the District of Utah [official website] to find a judgment in favor of American Atheists. In 2007, the district court held [opinion, PDF] that the "memorial crosses at issue communicate a secular message" and that a "reasonable observer ... would not view the memorial crosses as a government endorsement of religion." In 2006, the Utah Legislature [official website] passed a joint resolution [text] supporting the use of crosses as roadside to honor troopers.

In April, the US Supreme Court [official website] ruled [JURIST report] in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. The dispute concerned a Latin cross on a rock outcropping in the Mojave National Preserve. The display of the cross on public property had already been found in violation of the Establishment Clause [Cornell LII backgrounder], so the government sought to transfer the portion of land on which the cross was located to a private entity. In March, the US Court of Appeals for the Ninth Circuit [official website] ruled that a teacher-led recitation of the Pledge of Allegiance [JURIST report] in public schools does not violate the Constitution's Establishment Clause. The court also upheld the use of the phrase "In God We Trust" on currency. In November, the US Court of Appeals for the Third Circuit [official website] ruled that a school district's policy prohibiting the performance of religious holiday songs [JURIST report] does not violate the Establishment Clause. Also that month, a judge for the US District Court for the District of South Carolina [official website] ruled that license plates [JURIST report] produced by the state bearing a picture of a cross in front of a stained glass window and the words "I Believe" violate the Constitution.




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Peru judge revokes parole of US woman held for involvement with rebel group
Sarah Miley on August 18, 2010 3:38 PM ET

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[JURIST] A Peruvian judge on Wednesday revoked the parole of Lori Berenson [advocacy website], a US citizen held since 1995 for collaboration with a Marxist rebel organization. Berenson was granted parole [JURIST report] in May after serving 14 years of her 20-year sentence with the judge citing good behavior, renunciation of violence and completion of rehabilitation. Judges for the court reinstated her sentence after legal authorities failed to verify addresses of residence [NYT report] provided by Berenson after her release. An arrest warrant has been issued for Berenson, but she was not found at her apartment in Lima and has yet to be located. Berenson also had a son while in prison, which is said to have played a role in her release. Berenson was arrested in 1995 for involvement with the Tupac Amaru Revolutionary Movement (MRTA) [GlobalSecurity backgrounder], a left-wing rebel group. She is alleged to have trained guerrillas [Guardian report] and moved weapons for the MRTA in addition to assisting the group in carrying out an attack on the Peruvian Congress [official website, in Spanish] by gaining access to the body using press credentials.

In 2005, the Inter-American Court of Human Rights [official website] denied an appeal request to reinterpret its November 2004 ruling [JURIST reports] that upheld Berenson's conviction. Lawyers for Berenson claimed that her trial failed to meet international standards for fairness and sought to have her conviction and 20-year sentence overturned. In a 2000 CBS News interview [text], Berenson characterized her original trial proceedings as hostile and coercive, saying that she had faced a panel of hooded judges and that armed guards had aimed assault rifles at her and her lawyer's heads during the 10-minute proceeding. She was initially sentenced to life imprisonment by a military court, but the sentence was reduced to 20 years in a civil retrial in 2001.




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Colombia high court suspends US base agreement
Hillary Stemple on August 18, 2010 2:46 PM ET

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[JURIST] The Colombian Constitutional Court [official website, in Spanish] announced [press release, in Spanish] Tuesday the suspension of a base agreement [text, PDF] between the US and Colombia, stating the agreement must receive congressional approval before it can legally take effect. The agreement, negotiated between the two countries during the administration of former-Colombian president Alvaro Uribe [BBC profile], allows the US military to have access to seven Colombian military bases in order to combat drug trafficking and rebels. The court did not address whether the agreement was legal, but focused on the manner in which it was enacted. They stated that an agreement requiring the country to take on new obligations must be subjected to the same process as the approval of international treaties, which require congressional approval. A lawsuit challenging the constitutionality of the agreement was filed earlier this year [Telegraph report], arguing that Uribe exceeded his authority by approving the agreement without congressional support. Supporters of the agreement argued that the agreement was an extension of a previous military agreement with the US and therefore did not require congressional approval. President Juan Manuel Santos [official website, in Spanish] is now expected to send the agreement to congress [Reuters report], where his party holds a majority of the seats.

The US and Colombia continue working together to fight the continuing drug trafficking [PBS backgrounder] problem in Colombia. In May 2008, Colombia extradited 14 former militia leaders [JURIST report] suspected of organizing violent massacres and drug smuggling operations to the US to face drug trafficking charges. The guerrilla leaders had surrendered to Colombian authorities under a peace deal in which Uribe suspended warrants for their extradition, but Justice Minister Carlos Holguin told local radio that the leaders had broken the deal by continuing to organize gangs or by refusing to cooperate with government officials. In April 2008, a Colombian court temporarily blocked [JURIST report] the extradition of one such leader, Carlos Mario Jimenez-Naranjo, ruling that it would deny the victims of his crime the chance to seek compensation. The US and Colombia signed an extradition agreement [JURIST report] in 2005 that forces Colombian drug traffickers to face trial in the US.




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Bangladesh to release 1000 inmates to relieve prison overcrowding
Sarah Miley on August 18, 2010 1:59 PM ET

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[JURIST] The Bangladesh Ministry of Home Affairs [official website] announced Wednesday that it will release almost 1,000 prisoners in an effort to resolve the issue of overcrowding [JURIST news archive] throughout the nation's jails. Most Bangladeshi jails currently house three times their designed capacity. Women's facilities are the most affected by the overcrowding, with some facilities accommodating four times the allotted amount. Home Secretary Iqbal Khan Chowdhury stated that the government has selected prisoners that are in good standing [AFP report] and have served more than 20 years of their sentence. Chowdhury concluded that ministry will send the prison authorities an order for release on Wednesday.

Bangladesh took similar measures to reduce prison overcrowding in 2008 after the government announced a clampdown on crime and arrested thousands [JURIST reports] of political activists and suspected criminals on corruption charges. This caused prisons to reach triple their intended capacity and required the government to release certain prisoners who have served half their prison sentences in order to reduce the country's overcrowded prison populations. Bangladeshi political parties, the Awami League and the Bangladesh Nationalist Party [party websites] accused the government of using the sweep for political purposes, but government officials defended their actions claiming that the arrests were primarily based on warrants and other crimes and were not for political reasons under the Emergency Power Rules.




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Germany prosecutors charge former Rwanda mayor with genocide
Hillary Stemple on August 18, 2010 1:10 PM ET

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[JURIST] German federal prosecutors announced Wednesday that they have charged a former Rwandan mayor with genocide relating to his involvement in the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. According to prosecutors, Onesphore Rwabukombe [Trial Watch profile] allegedly coordinated three massacres [AFP report] in which more than 3,700 Tutsis, who had sought refuge in a church, were killed. Rwabukombe, who was a mayor in northern Rwanda at the time of the killings, is also accused of ordering a local official to turn away Tutsi refugees [AP report] seeking shelter in his home, resulting in at least one of the refugees being killed. German authorities had previously arrested Rwabukombe, but had to release him after they failed to obtain sufficient evidence to charge him with any crimes. Rwabukombe was arrested last month following further investigation which resulted in new evidence. He has been charged with genocide and murder, as well as inciting genocide and murder.

In addition to the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive], several countries have utilized their legal systems to try suspects accused of crimes related to the Rwandan genocide. In June, a Finnish court convicted former Rwandan pastor [JURIST report] Francois Bazaramba on charges of genocide and murder and sentenced him to life in prison. Canadian prosecutors announced in November that a second suspect had been charged [JURIST report] under Canada's Crimes Against Humanity and War Crimes Act [text, PDF]. The first man charged under the act was Desire Munyaneza. In October, he was sentenced to life imprisonment [JURIST report] for war crimes committed during the Rwandan genocide. Munyaneza was convicted [JURIST report] in May 2009 of seven counts of genocide, crimes against humanity, and war crimes under the act.




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Second Circuit rules foreign diplomatic housing exempt from property taxes
Hillary Stemple on August 18, 2010 10:51 AM ET

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[JURIST] A three-judge panel for the US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Tuesday that foreign diplomatic missions are not required to pay property taxes on real property used for housing staff and not diplomatic purposes. The ruling overturned judgments against India and Mongolia, which would have required the countries to pay a total of approximately USD $47 million in back taxes. The controversy arose when New York City attempted to assess property taxes on areas of foreign missions not used specifically for diplomatic work. The city argued that only portions of the diplomatic missions used explicitly for diplomatic purposes were exempt from property taxes, while the Indian and Mongolian missions maintained that entire diplomatic properties were exempt. In its ruling, the court cited a notice [materials] issued in 2009 by the US State Department (DOS) [official website] pursuant to the Foreign Missions Act [22 USC § 4301 et seq, PDF] which designated property tax exemption on real property owned by foreign governments and use for housing as a "benefit." The notice explicitly preempted all inconsistent state and local laws and applied to all property taxes that "have been or will be assessed." The court held that the notice was a lawful exercise of the DOS's authority and that it effectively nullified the existing property taxes owed by India and Mongolia. The city's corporation counsel, Michael Cardozo [official website], expressed his disappointment with the ruling [NYT report] and indicated that the city will appeal the decision to the US Supreme Court [official website; JURIST news archive].

The Supreme Court heard arguments [JURIST report] in 2007 in the case of Permanent Mission of India v. New York [Cornell LII backgrounder] in order to determine whether US courts have jurisdiction to hear claims against foreign governments regarding unpaid property taxes for diplomatic residences. The court ruled [opinion, PDF; JURIST report] that foreign governments may be sued for payment of local property taxes on real estate used for diplomatic residences, noting that "property ownership is not an inherently sovereign function," and that the Foreign Sovereign Immunities Act [text] "does not immunize foreign governments from lawsuits to declare the validity of tax liens on property held by the government" for diplomatic residences. The court remanded the case to the district court for further proceedings on the issue. The district court ruled in favor of New York in the second set of proceedings and India and Mongolia appealed the district court's ruling to the Second Circuit. The 2009 DOS notice went into effect during the appeals process.




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Ninth Circuit strikes down law criminalizinng false claims of military honors
Sarah Miley on August 18, 2010 10:23 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday struck down a federal law [opinion, PDF] criminalizing the act of falsely claiming to have received a medal from the US military. Xavier Alvarez was convicted under the Stolen Valor Act [text] in 2007 after he announced at a public water district board meeting that he was a retired Marine and had received the Congressional Medal of Honor. Alvarez had never received the nation's highest military honor nor had he ever served in any military service. After a fellow board member alerted the FBI to Alvarez's false statements, he was charged under the act and agreed to plead guilty if he was allowed to appeal the conviction on First Amendment [text] grounds. The Ninth Circuit held that the speech prohibited under the Stolen Valor Act did not fit within the narrow categories of false speech held to be beyond the First Amendment's "protective sweep." Judge Milan Smith, writing the opinion for the panel, stated that the district court's expansion of the scope of existing categorical exceptions to First Amendment protection would open the door to criminalization of false statements that were never intended to lie outside the amendments protective ground:
[I]f the Act is constitutional under th[is] analysis..., then there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government's legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court's undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech. ... We then apply strict scrutiny review to the Act, and hold it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.
In his dissent, Judge Jay Bybee argued that the majority refused to follow clear US Supreme Court [official website] precedent that false statements of fact are not entitled to First Amendment protection. The US Attorney's Office has not yet decided whether to appeal [AP report] the court's ruling.

The Stolen Valor Act was unanimously approved by the Senate and signed into law by former president George W. Bush in 2006. The act broadened provisions of previous US law and criminalizes the unauthorized wear, manufacture, sale or written or oral claim of any military decorations and medals. According to the circuit court opinion, Alavarez had a history of making false claims about serving in the military. He had previously told another board member that he won the Medal of Honor for rescuing the American ambassador during the Iranian hostage crisis and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his fellow soldiers, was able to get the helicopter back into the sky. Alvarez had also claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer and to have been secretly married to a Mexican starlet.




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Federal judge dismisses piracy charges against 6 Somalis
Hillary Stemple on August 18, 2010 9:15 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Tuesday dismissed piracy charges [order, PDF] against six Somali men accused of involvement in the April attack on the USS Ashland in the Gulf of Aden. During the attack on the Ashland, the defendants allegedly fired on the vessel but did not board or attempt to board the ship. The defendants were taken into custody by the crew of the Ashland after their boat caught fire. Lawyers for the defendants had argued that the charge of piracy, which carries a mandatory life sentence, should be dismissed because the act of piracy cannot occur where the defendants did not board or take control of the vessel and where nothing of value was taken during the act. Government lawyers maintained that the historical definition of piracy included different types of conduct and should not be limited to the common law definition. The prosecution also argued that piracy does not require the actual taking of property and that an armed assault or direct violent attack on the high seas is enough to constitute piracy. In his dismissal of the charges Judge Raymond Jackson stated that the definition of piracy as defined by the law of nations under 18 USC § 1651 [text] does not include violence or aggression committed on the high seas. He rejected the government's argument for an expanded reading of the statute stating that the government's definition would, "subject defendants to an enormously broad standard under a novel construction of the statute that has never been applied under United States law, and would in fact be contrary to Supreme Court case law." The defendants still face six remaining charges including assault, conspiracy and weapons charges. The district court is expected to hear similar arguments [AP report] in September from lawyers for another group of five suspected Somali pirates who face similar charges in relation to the April attack on the USS Nicholas. Charges against the 11 men associated with the attacks on the Ashland and the Nicholas were filed in April [JURIST report].

Several suspected Somali pirates have faced charges in federal court this year. A Somali man charged with piracy pleaded guilty [JURIST report] in May to charges of hijacking, kidnapping and hostage-taking related to an April 2009 attack on the US container ship Maersk Alabama [GlobalSecurity backgrounder]. Somali officials have criticized [BBC report] the US for exercising jurisdiction over suspected pirates, insisting that piracy prosecutions should be conducted by an international tribunal. They have also asked that Somali pirate suspects be returned to Somalia, which lacks a functioning central government to address the piracy problem. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Blagojevich guilty of false statements to FBI, jury hung on other 23 counts
Sarah Miley on August 18, 2010 8:50 AM ET

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[JURIST] Former Illinois governor Rod Blagojevich [JURIST news archive] was found guilty Tuesday of making false statements to the FBI, but the jury in the US District Court for the Northern District of Illinois [official website] was deadlocked on 23 additional charges. The jury deliberated for 14 days after the 11-week trial but was unable to reach a consensus on all but one of the charges, which included attempting to sell the Senate seat vacated by US President Barack Obama, making appointments based on anticipated campaign contributions and taking kickbacks from a number of companies. According to reports, there was a lone holdout [Chicago Tribune report] on the convictions regarding the sale of Obama's Senate seat. The female juror allegedly stated that due to the lack of a "smoking gun" she was unable to convict Blagojevich of the crimes. Blagojevich continues to deny the false statements charge for which he could spend up to five years in prison, and plans to appeal the conviction. The prosecution has said they are already preparing for a retrial on the 23 undecided counts. Presiding judge James Zagel has scheduled a hearing [NPR report] to discuss the retrial for August 26.

In June, Zagel denied a request [JURIST report] to delay the Blagojevich trial in order for his defense lawyers to review a decision by the US Supreme Court [official website] limiting the scope of the federal honest services fraud statute [18 USC § 1346 text]. Zagel held that the trial delay was unnecessary because the Supreme Court's decision in Skilling v. United States [Cornell LII backgrounder; JURIST report] was unlikely to affect Blagojevich's case. In April, the prosecution was ordered [JURIST report] to release a 91-page government proffer outlining evidence in its case against Blagojevich. In March, Blagojevich pleaded not guilty [JURIST report] to eight amended corruption charges. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008.




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Sri Lanka defense minister disputes war crimes allegations
Hillary Stemple on August 17, 2010 3:35 PM ET

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[JURIST] Sri Lankan Defense Secretary Gotabaya Rajapaksa [official profile] on Tuesday appeared before a government-backed commission [press release] investigating the events surrounding the island nation's civil war [JURIST news archive] and defended the actions of the government during the conflict with the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The Lessons Learnt and Reconciliation Commission (LLRC), appointed [press release] in May by Sri Lankan President Mahinda Rajapaksa [official profile], has been criticized [HRW release] as a superficial attempt to stave off an international investigation into accusations of widespread and severe human rights abuses by government forces during the war. Gotabaya Rajapaksa, brother of Mahinda Rajapksa, appeared before the commission and stated that the government took every effort to avoid civilian casualties. He also indicated that a major focus of the military campaign was providing humanitarian relief to regions of the country that had been under LTTE control. According to the secretary, the military risked higher casualties in order to allow humanitarian conveys into regions where fighting between the military and LTTE was heavy. Gotabaya Rajapaksa also argued that the UN and the international community were to blame [RTT report] for civilian casualties because they failed to ensure that the LTTE released civilians under their control.

International pressure on Sri Lanka to conduct a thorough investigation into the civil war continues to mount, despite the government-backed commission. In July, UN Secretary-General Ban Ki-moon [official profile] called on the Sri Lankan Government [press release; JURIST report] to improve conditions around UN offices in Colombo after a UN announcement [press release; JURIST report] of the formation of an international panel to investigate human rights abuses during the war resulted in days of pro-government protests [JURIST report] near UN offices. Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the 30-year civil war. In May, Human Rights Watch [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also in May, the International Crisis Group [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the war escalated in January 2009, leaving thousands more dead than projected by the UN.




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Spain launches privacy investigation against Google
Sarah Miley on August 17, 2010 2:48 PM ET

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[JURIST] Spanish officials announced this week that Spain has launched an investigation into whether Google [corporate website; JURIST news archive] violated privacy laws while collecting information over Wi-Fi networks for its Street View maps [website]. Madrid judge Raquel Fernandino issued a subpoena [BBC report] for an October 4 appearance by a Google representative over a lawsuit filed by Apedanica, a Spanish association of Internet users. Apedanica claims that Google's actions violate Spain's criminal code, which prevents people from accessing certain electronic communications other than for authorized purposes. The subpoena was issued last month but was not made public until this week. A spokesperson for Google stated that the Internet giant would fully cooperate with Spanish authorities [NYT report] to resolve the dispute and delete all data required under Spain's privacy laws.

Multiple investigations are already pending around the world in connection with accusations that Google unlawfully collected private data. The South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters in Seoul last week in connection with accusations that the company has been illegally acquiring user data [JURIST report]. Last month, Australian authorities completed an investigation [JURIST report] into the search giant's collection and storage of private data [JURIST news archive] over unsecured wireless networks, determining that the company violated the Australia Privacy Act. In June, the UK Metropolitan Police [official website] initiated an investigation [JURIST report] in response to a complaint filed [JURIST reports] by Privacy International (PI) [advocacy website], which claims that the information gathered in an independent audit [text, PDF] published by Google earlier that month proves that the company's interception of unencrypted data was not inadvertent [JURIST report] and should lead to prosecution. The US, Canada [JURIST reports], Belgium, the Czech Republic, France, Germany, Italy and Switzerland have also asked Google to retain data collected in those respective nations.




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UK court refers airline passenger compensation issue to Europe court
Hillary Stemple on August 17, 2010 2:35 PM ET

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[JURIST] The UK High Court on Tuesday suspended enforcement of a regulation requiring airlines to compensate passengers for flights that are delayed for more than three hours, until the European Court of Justice (ECJ) [official website] releases a new ruling on the issue. In November, the ECJ ruled [case materials; JURIST report] that airline passengers confronted with flight delays of three hours or more may receive compensation equal to that of passengers whose flights are canceled. The case arose under European Parliament and European Council Regulation (EC) No. 261/2004 [text, PDF], which sets forth rules for compensation and assistance of airline passengers. UK airlines, which asked the court to refer the issue back to the ECJ, have indicated that they believe the ECJ's 2009 ruling was incorrect [trade group report, PDF] and that they would not compensate passengers for delayed flights. Tuesday's decision will prohibit UK courts from enforcing the ECJ's original ruling. A spokesperson for the UK Civil Aviation Authority (CAA) [official website] stated that the CAA supports the original ruling [BBC report] and that they hope airlines will continue providing compensation to passengers who have experienced long flight delays, although they acknowledged that the CAA will have no enforcement mechanism until the ECJ offers a new ruling. The ECJ is not expected to review the case [Travel Weekly report] until 2012.

The 2009 ECJ ruling mirrors a ruling issued in 2008 [JURIST report], which upheld the right of compensation to passengers whose flights are canceled. The legislation, which went into effect [JURIST report] in 2005, requires airlines to compensate travelers for cancellations, delays and denial of seats. It places the burden of proof on airlines if they wish to avoid payment. In 2006, the ECJ upheld [JURIST report] the airline passenger regulations in a challenge brought by International Air Transport Association [group website] and the European Low Fares Airline Association [group website; press release, PDF], which argued that the law was too costly to implement and some conditions were outside of the airlines' control.




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Lebanon tribunal receives evidence from Hezbollah on ex-PM murder
Sarah Miley on August 17, 2010 1:40 PM ET

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[JURIST] Hezbollah [CFR backgrounders] officials on Tuesday submitted evidence to the UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive] linking Israel to the the assassination of former Lebanese prime minister Rafik Hariri [JURIST news archive]. The submission was in response to a request by the tribunal [JURIST report] last week for Hezbollah Secretary General Hassan Nasrallah [BBC profile] to turn over all information he possesses to the STL. The statement was issued by the tribunal after Nasrallah claimed to have proof that Israel was behind the assassination. Nasrallah said he would present concrete evidence proving that Israeli agents had sought to exploit divisions between Hariri's March 14 Alliance and the opposition March 8 Alliance, of which Hezbollah is a member.

In February, the head of the STL reassured [JURIST report] the Lebanese public that the investigation is on track. When asked about the progress of the investigation into the death of Hariri, the head of the STL "underlined the fact that the Tribunal already has in place all the legal and administrative instruments necessary for its work, and is fully operational so that justice may be dispensed with complete independence and impartiality in accordance with the highest international standards." The STL was established in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut in February 2005.




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Germany high court strikes down inheritance tax discrepancy for same-sex partners
Hillary Stemple on August 17, 2010 12:47 PM ET

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[JURIST] Germany's Federal Constitutional Court [official website, in German] ruled [press release, in German] Tuesday that a portion of the tax code requiring same-sex partners in a civil union [JURIST news archive] to pay a larger inheritance tax than partners in opposite-sex marriages is unconstitutional. Under Germany's current tax code, citizens in homosexual civil unions are required to pay between 17 and 50 percent for an inheritance tax upon the death of a partner, while heterosexual married partners are required to pay between 7 and 30 percent for the tax. Germany has recognized same-sex civil unions since 2001, but the legal status falls short of the status given to heterosexual marriage. The German government attempted to remedy the tax discrepancy in 2008, but, because registered partners are legally viewed as distant relatives, inconsistencies in the tax rates remain. The court stated that the discrepancy was not justified by the fact that heterosexual marriages could produce children and that equality in taxation will not undermine the government's efforts to promote marriage. The court gave the German government until the end of the year to compensate citizens who were taxed at the higher rate.

In June, a German court ruled that a same-sex marriage performed abroad must be recognized as a registered partnership [JURIST report] in Germany. In the ruling, an administrative court in Berlin held that the marriage must be treated legally as a registered partnership [AFP report], after finding that authorities could not recognize the relationship as a marriage due to the requirement of different sexes for marriage under German law. In March, the Berlin government, sought to introduce legislation [DK report, in German] in the Bundesrat [official website, in German] that would legalize same-sex marriage nationwide. In October, the Constitutional Court ruled that surviving partners in a registered civil partnership have a right to collect [JURIST report] under the occupational pension scheme for civil service employees.




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Former INTERPOL chief files leave to appeal conviction and sentence
Hillary Stemple on August 17, 2010 11:03 AM ET

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[JURIST] Former INTERPOL [official website] president and South African police chief Jackie Selebi [official profile; JURIST news archive] on Tuesday filed for leave to appeal his sentence and conviction. A spokesperson for the South African National Prosecuting Authority (NPA) [official website] confirmed that they received his application [AFP report] and that they would be opposing the appeal. Selebi was sentenced earlier this month to 15 years in prison after being convicted of corruption [JURIST reports] in July for receiving $170,000 in bribes from convicted drug smuggler Glenn Agliotti [Mail & Guardian profile], who was suspected of killing South African mining magnate Brett Kebble. Selebi is claiming that he did not receive a fair trial [Mail & Guardian report] and that the court erred in finding that he was guilty beyond a reasonable doubt. He is also appealing his sentence, arguing that there were compelling circumstances warranting a lesser sentence. Selebi remains free on bail pending the appeal.

Selebi pleaded not guilty [JURIST report] at the beginning of his trial in October, claiming that the charges against him were fabricated in retaliation for his corruption investigation of two members of the NPA. The court rejected Selebi's defense of a conspiracy against him and found him guilty of granting favors to Agliotti in exchange for money and gifts totaling USD $156,000. Selebi was suspended from his police post and forced to resign as INTERPOL president after the NPA announced the impending charges [JURIST reports]. The NPA has alleged that Selebi ignored Agliotti's drug trafficking and warned Agliotti that he had been identified in a murder investigation.




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Federal judge rejects SEC-Citigroup subprime mortgage settlement
Sarah Miley on August 17, 2010 10:38 AM ET

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[JURIST] A federal judge on Monday rejected a $75 million settlement [JURIST report] reached between Citigroup [corporate website] and the US Securities and Exchange Commission (SEC) [official website] last month to resolve charges of misleading investors about Citigroup's exposure to sub-prime mortgage-related assets. Citigroup represented that its sub-prime exposure was $13 billion or less, when it was more than $50 billion at all times, which SEC officials say contributed to the economic crisis. During the settlement hearing, Judge Ellen Huvelle questioned the SEC's investigation of Citigroup's activities and asked for additional information from both parties on how the final settlement amount was reached. Huvelle also inquired as to why company shareholders were forced to bear the majority of the costs associated with the sanction and the reasoning behind the agency only charging two Citigroup executives when more senior executives were involved. The judge ordered both parties to file briefs [WP report] addressing these questions and scheduled a new hearing for September.

Huvelle's rejection marks the second time this year the federal courts have questioned SEC settlements with banks charged with misleading investors during the 2007 financial crisis. In February, a judge in the US District Court for the Southern District of New York [official website] accepted [JURIST report] a $150 million dollar settlement agreement between the SEC and Bank of America (BOA) [corporate website] after twice rejecting a $33 million settlement [JURIST report] between the two parties. The SEC had charged BOA with misleading investors [complaint, PDF; JURIST report] regarding billions of dollars paid to Merrill Lynch [corporate website] executives during the acquisition of the firm. In his ruling, Judge Jed Rakoff said he was "reluctantly agreeing" to the settlement, which he called "improved, but far from ideal" and "half-baked justice at best."




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Ninth Circuit extends stay on California same-sex marriages
Hillary Stemple on August 17, 2010 9:21 AM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] on Monday issued an emergency stay [order, PDF] pending an appeal of a federal judge's decision overturning Proposition 8, the California ban on same-sex marriage [JURIST news archives]. The stay will prohibit California from issuing marriage licenses to same-sex couples while the court of appeals considers the issues raised on appeal as well as whether the remaining parties to the suit have Article III standing to appeal. California was scheduled to resume issuing same-sex marriage licenses on Wednesday, after District Judge Vaughn Walker refused last week to issue a stay [JURIST report] pending appeal. The court of appeals sua sponte ordered that the appeal be expedited pursuant to Rule 2 of the Federal Rules of Appellate Procedure [text] and has ordered the proponents of Proposition 8 to submit opening briefs by September 17. Freedom to Marry [advocacy website] expressed disappointment [press release] in the court's decision, but indicated that they were pleased with the expedited schedule set by the court. Alliance Defense Fund [advocacy website], a defendant-intervenor in the case, stated that the court made the right decision [press release] and that, "refusing to stay the decision would only have created more legal confusion surrounding any same-sex unions entered while the appeal is pending." The court of appeals is scheduled to begin hearing oral arguments in the case in December.

Earlier this month, Walker held that the same-sex marriage ban violated the guarantees of due process and equal protection [JURIST report] under the US Constitution, but immediately stayed the ruling. California Governor Arnold Schwarzenegger, Attorney General Jerry Brown and others filed motions [JURIST report] opposing the stay request, which led to Walker's refusal to issue a stay pending appeal. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, and their refusal to oppose the stay request has left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.




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Federal judge orders release of Guantanamo detainee for lack of evidence
Sarah Miley on August 17, 2010 9:20 AM ET

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[JURIST] The US District Court for the District of Columbia [official website] on Monday released a partially redacted opinion [text, PDF] ordering the release of Yemeni Guantanamo Bay detainee Adnan Farhan Abdul Latif [NYT profile] for lack of evidence. The district court granted [JURIST report] Latif's habeas corpus petition in July, but the ruling was not made public until this week. Judge Henry Kennedy held that the government failed to meet the preponderance of evidence standard in proving that Latif was part of a terrorist organization and, therefore, his continued incarceration was unlawful. Latif, who has been in custody for more than eight years, contends that he was in Pakistan for medical treatment when he was arrested and turned over to US forces. The government alleged that Latif was sent to Pakistan and Afghanistan for al Qaeda [JURIST archive] training. In his opinion, Kennedy stated that the evidence against Latif was not "sufficiently reliable" to meet the burden of proof and that there was no corroborating evidence for any of the incriminating statements against the detainee. The government has not yet indicated whether it will appeal the decision, transfer Latif back to Yemen or find another country willing to accept him.

The DC district court ruling was the first decision to use the standard set forth last month by the US Court of Appeals for the District of Columbia Circuit in Bensaya v. Obama [opinion, PDF], which requires the government to show a preponderance of evidence that an enemy combatant is "part of" a terrorist group [JURIST report]. The circuit court held that the government's authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] only extends to the detention of individuals who are "functionally part of" a terrorist organization. Bensayah was the only one of the six petitioners from the 2008 Boumediene v. Bush [opinion, PDF; JURIST report] decision who was not granted habeas relief after the Supreme Court remanded the case for further review of evidence. Under Boumediene, federal courts have jurisdiction to review habeas corpus petitions filed by Guantanamo detainees who have been classified as "enemy combatants." In May, the DC Circuit ruled in Al Maqaleh v. Gates that Boumediene was narrowly tailored to detainees being held at Guantanamo and that detainees held at Bagram Air Force Base [official website; JURIST news archive] in Afghanistan cannot bring habeas corpus challenges in US courts.




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Federal judge finds Missouri funeral protest bans unconstitutional
Ann Riley on August 17, 2010 8:32 AM ET

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[JURIST] A judge for the US District Court for the Western District of Missouri [official website] on Monday ruled [opinion] that Missouri laws restricting protests near funerals are unconstitutional. Judge Fernando Gaitan held that two 2006 laws banning protests at funerals violated the US Constitution's First Amendment [text] right to free speech. The court concluded that prosecutors failed to show how restrictions on protests were narrowly tailored to serve a significant government interest of preventing interruptions at funeral services. Gaitan noted that the US Court of Appeals for the Eighth Circuit [official website] had previously rejected [JURIST report] the argument. In 2006, the Missouri General Assembly [official website] passed two laws in response to protests at military funerals [JURIST news archive] by the Westboro Baptist Church [WARNING: readers may find material at this church website offensive; JURIST news archive]. The laws banned protests within 300 feet of any funeral location [578.502 text] and within one hour prior to and one hour after the services [578.501 text]. The American Civil Liberties Union (ACLU) [advocacy website] filed the suit on behalf of Westboro church member Shirley Phelps-Roper. Last year, the US Supreme Court [official website, JURIST news archive] denied certiorari [order, PDF] in the case, without comment. The authorites were barred [JURIST report] from enforcing the protest restrictions while the lawsuit was pending. Missouri Attorney General Chris Koster [official website] plans to appeal the latest ruling.

In June, 48 states and the District of Columbia filed an amicus curiae brief [text] supporting the right to limit protests around military funerals [JURIST report] in the separate case of Snyder v. Phelps [docket]. The Supreme Court granted certiorari [cert. petition, PDF; JURIST report] in the case to determine if the First Amendment right to freedom of speech can be limited in specific situations. The suit was brought [JURIST report] by the family of Marine Lance Corporal Matthew Snyder after Reverend Fred Phelps and members of his Westboro Baptist Church picketed his funeral. Phelps and members of his church have been traveling around the country picketing military funerals in recent years, claiming US soldiers have been killed because America tolerates homosexuals. A federal judge awarded the family [JURIST report] almost $11 million in damages, but the US Court of Appeals for the Fourth Circuit reversed, holding that Phelps's speech was protected under the First Amendment.




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Mexico high court upholds Mexico City same-sex adoption law
Ann Riley on August 17, 2010 7:14 AM ET

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[JURIST] The Supreme Court of Mexico [official website, in Spanish] ruled 9-2 on Monday to uphold [press release, in Spanish] a Mexico City law allowing adoptions by same-sex couples. Justices in the majority found that same-sex adoptions do not violate [El Universal report, in Spanish] the Mexican Constitution [text, PDF], which, regardless of the familial structure, provides equal protections to heterosexual couples, single mothers, divorced parents, grandparents and same-sex couples. The majority explained that it would be discriminatory to find same-sex couples less capable parents than heterosexual couples. Attorney General Arturo Chavez [official website, in Spanish] challenged the law on the basis that it violated the rights of adopted children, denying them protections from discrimination and guarantees to a traditional heterosexual family model.

Last week, the court ruled 9-2 that same-sex marriages [JURIST news archive] performed in Mexico City must be recognized nationwide [JURIST report]. The court found that although Mexico's 31 states are not required to allow same-sex marriages to be performed in their jurisdictions, they must confer marital rights to same-sex couples married in Mexico City. Earlier this month, the court ruled 8-2 that Mexico City's same-sex marriage law is constitutional [JURIST report]. The law, passed last year [JURIST report], was challenged by Chavez, who had argued that allowing same-sex marriages violates the guarantee of familial integrity under the Constitution. The court rejected this argument, finding that the constitution did not specify what constituted a family and found that the regulation of marriage licenses was a state function. In December, Mexico City's legislative assembly [official website, in Spanish] approved the same-sex marriage law. The legislation allows for marriage, adoption, inheritance and other economic and social rights. The provision also seeks to end discrimination based on sexual orientation.




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US government temporarily halts Gulf drilling exemptions
Hillary Stemple on August 16, 2010 3:27 PM ET

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[JURIST] US Secretary of the Interior Ken Salazar [official profile] announced Monday that environmental reviews will be required [press release] for all new deepwater drilling, temporarily halting exemptions that allowed oil companies to drill without environmental impact statements. The process for exemptions was created under the National Environmental Policy Act (NEPA) [materials] and required exemptions to be offered based on data provided by the companies seeking to drill. The announcement came after the White House Council on Environmental Quality [official website] reported that BP received an exemption [press release] based on outdated information for the Deepwater Horizon drilling site, which blew out in April leading to the massive Gulf of Mexico oil spill [BBC backgrounder; JURIST news archive]. Salazar stated that the NEPA process for exemptions would be thoroughly reviewed and that the decision to allow drilling must be "fully informed by an understanding of the potential environmental consequences." Exemptions to the environmental review under NEPA will now be restricted to projects that involve "limited environmental risk." A six-month drilling moratorium [JURIST report] is currently limiting new drilling in the Gulf, and the restricted exemptions are expected to make approval for new deepwater drilling more difficult once the moratorium is lifted.

The Obama administration first announced a drilling moratorium [JURIST report] in May, suspending several offshore drilling activities including pending lease sales in the Gulf and Virginia and the drilling of 33 deepwater exploratory wells in the Gulf. In June, a federal judge ordered a preliminary injunction [opinion, PDF; JURIST report] against the original moratorium, stating that the blanket moratorium on drilling was too harsh and that the administration failed to consider less-restrictive alternatives. Last month, the US Court of Appeals for the Fifth Circuit [official website] rejected a request [JURIST report] by the administration to stay the preliminary injunction. The US Department of Justice (DOJ) [official website] asked the appeals court to stay the injunction, claiming the district judge abused his discretion [JURIST report] and that another deepwater spill could overwhelm the ongoing efforts to clean up the spill with catastrophic results. The six-month drilling moratorium was issued in response to the court of appeals decision. More than 200 million gallons of oil leaked from the rig's broken pipe, surpassing the Exxon Valdez oil spill [JURIST news archive] as the worst in US history.




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Thailand protest leaders plead not guilty to terrorism charges as state of emergency lifted
Sarah Miley on August 16, 2010 1:55 PM ET

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[JURIST] Opposition leaders in Thailand pleaded not guilty Monday to charges of terrorism in connection with Thailand's recent political violence [JURIST news archive], as the government partially lifted the state of emergency that has been in place since May. The men held leadership positions in the United Front for Democracy Against Dictatorship [party website, in Thai] opposition group known as red shirts [BBC backgrounder] that conducted anti-government protests spanning from March 12 to May 19. They are accused of inciting violence, threatening government officials, including the prime minister, and committing terrorism during the protests. Coinciding with the plea, Prime Minister Abhisit Vejjajiva lifted the state of emergency [AP report] in three of the nation's northern provinces, but kept the decree in place in Bangkok and six other regions, citing security reasons. The next hearing for the opposition leaders is set for September 27, and, if convicted, the men face the possibility of execution.

In June, the Thai government indicated it will study the possibility of extending amnesty to red shirt protesters [JURIST report] convicted of minor offenses in order to facilitate reconciliation within the country. The offer of amnesty would not be given to the protesters charged with terrorism but could be extended to the 27 red shirt protesters who were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. The protests came to an end [JURIST report] last month when red shirt leaders surrendered to police, which led to rioting, arson and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas. The red shirts are supporters of ousted prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who was removed from power in 2006 [JURIST report]. Last week, Thaksin lost an appeal [JURIST reports] to the Supreme Court of Thailand [GlobaLex backgrounder] challenging the seizure of his assets [JURIST report] by the government after the Constitutional Court had found him guilty of using his power in office to personally benefit himself and other family members.




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DOJ ends DeLay criminal probe without filing charges
Hillary Stemple on August 16, 2010 12:10 PM ET

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[JURIST] A lawyer for former US House Majority Leader Tom DeLay (R-TX) [JURIST news archive] confirmed Monday that a US Department of Justice (DOJ) [official website] criminal probe into DeLay's association with lobbyist Jack Abramoff [JURIST news archive] has been dismissed without charges being filed. The investigation lasted six years and included grand jury testimony [Politico report] from former aides as well as a review of more than 1,000 documents and e-mails from DeLay's office. Richard Cullen, a lawyer representing DeLay, noted that while many members of Congress targeted for investigation objected to producing documents, DeLay made every effort to provide the requested documentation. While the DOJ does not comment on investigations that conclude without charges being filed, Cullen stated that he was informed last week that the investigation was ending. DeLay still faces money laundering and conspiracy charges in Texas state court relating to 2002 state legislative elections. The state court trial is expected to begin next spring.

DeLay and two other Republicans are accused of transferring $190,000 in corporate money directly to the Republican National Committee, which then donated the same amount to local Texas campaigns. DeLay and the other suspects have denied raising or spending money illegally. In August 2008, a Texas appeals court allowed the money-laundering indictment [JURIST report] against DeLay's associates to stand. In 2007, a Texas appeals court ruled against reinstating a charge of conspiracy to violate the state's election against DeLay and his two associates. After he was indicted, DeLay stepped down as House majority leader and later resigned from Congress [JURIST reports].




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Rights group claims Kyrgyzstan armed forces played role in ethnic clash
Sarah Miley on August 16, 2010 11:00 AM ET

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[JURIST] Kyrgyzstan armed forces played a role in instigating and at times taking part in recent attacks against ethnic Uzbeks, Human Rights Watch (HRW) [advocacy website] reported [text] Monday. HRW also stated that local law enforcement did not provide adequate protection [press release] to the Uzbek community during the June 2010 ethnic violence [JURIST news archive]. The report documents large-scale "sweep" operations in Uzbek neighborhoods and abusive search and seizure operations that security forces have conducted daily in Osh's predominantly Uzbek communities. The report called for authorities to investigate the role of the government in the violence and to prosecute those responsible for the clash, which left at least 370 people dead:
It's clear that the massive ethnic violence posed colossal challenges for Kyrgyz security forces, yet we found that some of the security forces became part of the problem rather than the solution. National and international inquiries need to find out just what the government forces did and whether the authorities did everything they could to protect people. This is crucial both for justice and to learn lessons about how to respond to any new outbreaks. Those responsible for the heinous crimes against both Kyrgyz and Uzbeks during the June violence should be prosecuted irrespective of their ethnicity, title, or rank.
The report was compiled through a combination of testimony from victims, witnesses, human rights experts and government personnel, as well as satellite and photographic images and forensic evidence. According to HRW, the Kyrgyz government has commenced more than 3,500 criminal investigations, but has failed to thoroughly examine the role and responsibility of government forces in the violence. HRW has also called on the international community to ensure the effective and speedy deployment of an international police force and to support efforts for an international investigation.

Last month, UN Human Rights Commissioner Navi Pillay [official website] issued a warning [JURIST report] about ongoing human rights violations in Kyrgyzstan following the recent ethnic violence in the country. According to Pillay, security forces in the southern part of the country have been arbitrarily detaining large numbers of Uzbeks in violation of both Kyrgz and international laws. Additionally in July, Kyrgyz interim President Roza Otunbayeva [Telegraph profile] established a commission [JURIST report] to investigate the ethnic violence against the country's Uzbek population. It will consult with government and international experts and present its findings [AP report] on the causes and repercussions of the violence in September.




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Diamond trading group bans sale of Zimbabwe stones over rights violations
Hillary Stemple on August 16, 2010 10:35 AM ET

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[JURIST] The US-based Rapaport Diamond Trading Network [corporate website] on Sunday reiterated its stance against the sale of Zimbabwe diamonds [press release] associated with human rights violations. In a letter to their members, Rapaport stated they will expel members who knowingly trade the tainted diamonds and that they will publish the names of members who trade the stones. Last week, the Kimberley Process (KP) [official website] certified approximately 900,000 carats of diamonds from Marange, Zimbabwe [Fair Trade backgrounder], stating that the mines producing the stones met required minimum international standards [CP report]. Rapaport noted that KP certification may allow the stones to be sold in certain jurisdictions, but warned that it is illegal for citizens from the US, EU and UK to knowingly trade diamonds from the Marange diamond fields. They also cautioned that KP certification does not guarantee that the diamonds are not associated with human rights violations and that KP does not have a mandate to deny certification for diamonds involved in human rights violations.

KP approved the sale of the diamonds [JURIST report] from the Marange mines last month, after reaching an agreement with the Zimbabwean government. Under the agreement, KP will allow Zimbabwe to sell [NYT report] a portion of its estimated USD $1.7 billion worth of mined diamonds before September, and the Zimbabwean government will allow KP experts to enter the country to certify that the diamond mines meet international standards. Diamonds sales after September will be contingent upon this certification. Last November, rights groups urged KP to suspend [JURIST report] Zimbabwe's international diamond trade due to the human rights violations [Telegraph report] allegedly committed by the Zimbabwean army against civilians and illegal workers in the Marange diamond fields.




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US Senator introduces Guantanamo habeas corpus bill
Sarah Miley on August 16, 2010 8:53 AM ET

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[JURIST] US Senator Lindsey Graham (R-SC) [official website] has introduced a bill to create rules and guidelines for legal challenges brought by future Guantanamo Bay [JURIST news archive] detainees and enemy combatants captured by US forces. Graham introduced the Terrorist Detention Review Reform Act [text, PDF] earlier this month without the support of the Obama administration, reflecting the parties' inability to reach a consensus on habeas corpus legislation. The landmark legislation would have Congress provide a definition of an enemy combatant subject to detention, create guidelines for the amount of evidence needed to keep a detainee incarcerated and authorize competent courts to take into consideration involuntary statements made by prisoners in the battlefield. Neither Graham nor the Obama administration has made an official statement regarding the bill, but political analysts have noted that Graham's actions were most likely intended to force the administration to reach a compromise [Politico report] on the currently contentious issue.

Habeas corpus relief for enemy combatants has been a prominent issue in US federal courts. Last month, the US Court of Appeals for the District of Columbia Circuit [official website] released a redacted opinion [JURIST report] holding that evidence against Algerian Guantanamo Bay detainee Belkacem Bensaya must be reviewed to determine if he was "part of" al Qaeda [JURIST archive]. Circuit Judge Douglas Ginsburg, writing the opinion for the panel, held that there appeared to be no direct evidence linking Bensaya to al Qaeda, and that the government's authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] only extends to the detention of individuals who are "functionally part of" a terrorist organization. Bensayah was the only one of the six petitioners from the 2008 Boumediene v. Bush [opinion, PDF; JURIST report] decision who was not granted habeas relief after the Supreme Court remanded the case for further review of evidence. In Ma,y the DC Circuit ruled in Al Maqaleh v. Gates that Boumediene was narrowly tailored to detainees being held at Guantanamo [JURIST report] and that detainees held at Bagram Air Force Base [official website; JURIST news archive] in Afghanistan cannot bring habeas corpus challenges in US courts.




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Cambodia genocide prosecutors to appeal ex-Khmer Rouge leader sentence
Hillary Stemple on August 16, 2010 8:52 AM ET

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[JURIST] Co-prosecutors for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday filed a notice of an appeal [text, PDF; press release] of the judgment against former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive]. Last month, the trial chamber of the ECCC convicted Kaing [JURIST report], also known as "Duch," of crimes against humanity and of violating the 1949 Geneva Conventions, sentencing him to 35 years in prison. Kaing's sentence was reduced to 19 years after the court considered time served as well as other factors. The prosecution, seeking to increase Kaing's term of imprisonment, identified three grounds for appeal, including a discernible error in the exercise of sentencing discretion, an error of law regarding cumulative convictions and an error of law regarding enslavement. They contend that the trial chamber gave insufficient weight to the gravity of Kaing's crimes and undue weight to mitigating circumstances. The prosecution called Kaing's sentence "arbitrary" and "manifestly inadequate." They also argue that the judgment should be invalidated for failure to convict Kaing cumulatively for the distinct crimes of rape and torture and for employing a definition of enslavement requiring forced labor as an element of the crime. Kaing has also indicated that he plans to appeal his conviction, and he has hired new counsel [JURIST report] to handle the appeals process.

Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families, mitigating conduct that earned him a reduced sentence from the 40 years prosecutors originally sought. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provision detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution.




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Canadian lawyers oppose bill requiring Supreme Court justices to be bilingual
Erin Bock on August 15, 2010 1:25 PM ET

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[JURIST] The Canadian Bar Association [official website] passed a resolution at its annual meeting Saturday opposing a federal bill [C-232 materials] that would require Supreme Court of Canada. [official website] justices to speak both French and English. The private member's bill recently passed the Canadian House of Commons by a slim majority and is now before the Senate [Edmonton Journal report]. Proponents of the bill argue that high court judges risk misunderstanding legal arguments by using translators and translation devices. Opponents argue that requiring bilingualism will cause otherwise qualified candidates for Canada's top tribunal to be overlooked and will place more importance on language than expertise and merits. The resolution, introduced by lawyers from mostly English-speaking western Canada, stated that bilingualism is something to consider, but should not prevent an individual from being appointed to the bench.

The bill, originally introduced by New Brunswick NDP MP Yvon Godin, has the most support in predominantly French-speaking Quebec. A similar measure was unsuccessfully introduced [Montreal Gazette report] by Liberal MP Denis Coderre in 1998. Earlier this year former Canadian Supreme Court Justice John Major spoke out publicly [Globe and Mail report] against the bill. According to Major, only two or three current justices on the nine-member national bench are sufficiently bilingual to hear cases without simultaneous translation.




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UN staff protection treaty coming into force after UK ratification
Daniel Makosky on August 15, 2010 9:25 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] Friday praised [press release] the United Kingdom's recent ratification of a treaty designed to extend legal safeguards to UN and humanitarian personnel participating in relief efforts. With the UK's formal approval of the instrument last month, the minimum threshold of 22 signatories [text, PDF] to the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel [text, PDF] is met, allowing it to enter into effect. The Protocol is scheduled to become operational August 19, 30 days after [press release] ratification by the UK.

Drafted in 2005, the Protocol represents an extension of the 1994 Convention [text] that afforded legal protection only to those involved in peacekeeping operations. By eliminating the need for a 'declaration of exceptional risk,' the Protocol affords the same protections to a broader range of personnel, including those engaged in humanitarian or developmental efforts as part of peacebuilding campaigns.




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Blogger convicted for death threats against federal judges upholding gun control laws
Zach Zagger on August 14, 2010 1:25 PM ET

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[JURIST] A right-wing blogger from New Jersey was convicted by a federal jury Friday for death threats made on his blog against federal judges who upheld a gun control law. Harold "Hal" Turner [advocacy website], a one-time FBI informant on white-supremacist groups, was convicted [NJ Record report] in Brooklyn of a single count of threatening to assault and murder federal judges. Prosecutors alleged that Turner wrote on his blog that federal judges should die and posted the courthouse address and a map which prosecutors claimed showed his intent to intimidate and impede the judges from doing their job. Turner faces up to 10 years in prison and a $250,000 fine. Federal prosecutors had tried twice before to convict Turner but both efforts ended with mistrials. The charges stem from comments Turner made on his blog against three judges from the US Court of Appeals for the Seventh Circuit [official website] who ruled [JURIST report] in June in favor of two municipal gun control laws in Illinois: William Bauer, Frank Easterbrook and Richard Posner.

Threats against judges, US attorneys, and assistant US attorneys have more than doubled over the last six years, according to a report [text, PDF] released [JURIST report] in January by the US Department of Justice. The report found that judges, US attorneys, and assistant US attorneys received 1,278 threats in 2008, compared to 592 in 2003. Additionally, the report found that threats are not always consistently and promptly reported. In December 2008, Brian Nichols was sentenced to seven life terms to be served consecutively in addition to other punishment for shooting and killing a superior court judge [JURIST reports] and other personnel in an Atlanta courthouse in an attempted escape. In April 2008, Ohio resident David Tuason was indicted for allegedly threatening to blow up the US Supreme Court building [JURIST report] and attack black men, including Supreme Court Justice Clarence Thomas. Other death threats [JURIST report] have been reported in recent years against Supreme Court Justice Ruth Bader Ginsburg and now-retired Justice Sandra Day O'Connor.




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Obama signs bill to increase US southern border security
Andrea Bottorff on August 14, 2010 11:00 AM ET

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[JURIST] US President Barack Obama [official website] Friday signed legislation designed to increase security along the US-Mexico border. The Act [HR 6080 materials] allocates an additional $600 million toward hiring 1,000 new Border Patrol [CPB officlal website] agents and 200 special agents, building two new border control stations and buying more surveillance tools, including unmanned aircraft drones. The House of Representatives [official website] approved the bill Tuesday; it was originally introduced August 5. Secretary of the Department of Homeland Security Janet Napolitano [official profile] praised the bipartisan effort [press briefing, text] in passing the bill and explained the long-term goals of the Act:
The legislation adds permanent resources that will continue to bolster security along the Southwest border, supporting our efforts to crack down on transnational criminal organizations, and reduce the trafficking of people, drugs, currency and weapons.
Napolitano added that the Act was the first step in a large-scale immigration reform project that would continue over the next few years. Obama has already called for sweeping immigration reform [JURIST report] in light of the growing nationwide debate on immigration policy.

Last week, Virginia Attorney General Kenneth Cuccinelli (R) [official website] issued an opinion [JURIST report] finding that state law enforcement officials have the authority to investigate the immigration status of those they stop or arrest. Cuccinelli's opinion mirrors the tough Arizona immigration law [SB 1070 materials; JURIST news archive], which has been widely criticized as unconstitutional for allegedly legalizing racial profiling. Last month, a judge for the US District Court for the District of Arizona [official website] issued a preliminary injunction [JURIST report] against the most controversial aspects of the law.




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UN rights committee calls for repeal of anti-leprosy laws
Sarah Miley on August 13, 2010 3:01 PM ET

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[JURIST] The UN Human Rights Council Advisory Committee [official website] on Friday called for the repeal [press release] of all laws that discriminate against people affected by leprosy. The committee also drafted a recommended set of principles and guidelines [UN News Centre report] to be used by countries in enacting legislation to protect leprosy patients and their family members from being discriminated against in employment, health, marriage, and the use of public utilities and places. The committee stated that although leprosy has been eliminated as a public health problem in most countries and is curable if caught in its early stages, the disease still carries a strong social stigma. According to the UN World Health Organization [official website] over 15 million cases of leprosy have been cured over the past 25 years. Leprosy is one of the oldest known diseases and is most prevalent in poor and disadvantaged regions.

The UN has also recently taken action to create legal environments beneficial to those affected by HIV/AIDS. In July the UN Development Programme (UNDP) [official website] released a study [JURIST report] claiming that laws criminalizing homosexual activity are contributing to the spread of HIV/AIDS in the Asia-Pacific region. The report comes one month after the launch of the Global Commission on HIV and the Law, created by the UNDP and the UNAIDS Secretariat [official websites] in order to better understand the role played by the law [JURIST report] in facilitating universal access to AIDS prevention and treatment. The commission is charged with developing "actionable and evidence-informed recommendations" to create national legal environments with effective and efficient HIV/AIDS responses. UNAIDS strongly opposes any laws that restrict movement based on HIV-positive status, holding that such restrictions are discriminatory and do not prevent HIV transmission or protect public health.




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Guatemala corruption commission issues arrest warrants for former officials
Dwyer Arce on August 13, 2010 2:33 PM ET

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[JURIST] The International Commission Against Impunity in Guatemala (CICIG) [official website] on Wednesday announced that it had issued arrest warrants for former government officials in relation to the extrajudicial killing of several inmates following a 2007 prison riot. The CICIG issued 18 warrants [El Heraldo report, in Spanish], including those for former interior minister Carlos Vielmann, former police director Erwin Sperissen and former prison director Alejandro Giammettei. In addition, the former officials are accused of involvement in the extrajudicial killing of three inmates [AP report] who escaped from another prison in 2005. The former officials are suspected of being members of an organization formed by the Interior Ministry and the national police in 2004 which was involved in drug trafficking, money laundering, kidnapping and extortion in addition to committing the killings. President Alvaro Colom praised the warrants for helping to end the culture of impunity enjoyed by corrupt officials. Six were arrested in connection with the case earlier this week, but Vielmann, Sperissen and Giammettei remain free. Vielmann and Sperissen are both believed to have left the country, whereas Giammettei took refuge at the Honduran embassy earlier in the week, seeking asylum to prevent his prosecution, which he described as politically motivated. Colom has refuted these claims, arguing that his government has had no hand in the court's actions. The Honduran ambassador to Guatemala has announced that his government had denied Giammettei's request, and that he would be turned over to Guatemalan authorities Friday. Former Honduran foreign minister Enrique Ortez has appealed that decision [El Heraldo report, in Spanish], arguing that releasing Giammettei into Guatemalan custody would be a death sentence.

Official corruption has long been a problem in Guatemala. In June, the Guatemalan Constitutional Court [official website, in Spanish] removed Attorney General Conrado Reyes from office after CICIG head Carlos Castresana accused him of ties to organized crime [JURIST reports]. Castresana included the accusation when citing his reasons for resigning from his position. An interim attorney general has been appointed, and Reyes has indicated he will not appeal the decision. In March, following an 11-month investigation with CICIG, Guatemalan authorities arrested two high-ranking police officials [JURIST report] tasked with leading the country's war on drugs on charges of corruption and drug trafficking. Also in March, the US State Department released its 2010 International Narcotics Control Strategy Report [text, PDF], which highlighted Guatemala as a key player in the Latin American drug trade. Corruption among high-ranking officials was cited as one of the country's biggest problems. The Guatemalan Congress voted to create CICIG [JURIST report] in 2007 in order to investigate organized crime and official corruption.




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Former Sri Lanka army chief Fonseka convicted of engaging in politics while on duty
Drew Singer on August 13, 2010 1:33 PM ET

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[JURIST] A Sri Lanka court martial on Friday found former army chief Sarath Fonseka [BBC profile; JURIST news archive] guilty of engaging in politics while on active duty. Sentenced to a dishonorable discharge, Fonseka was accused of trying to secure a place in a political party [Al Jazeera report] before he quit his military position. Fonseka will be stripped of his rank and medals [BBC report] once the government ratifies the court martial decision. Fonseka, who is credited with bringing an end to a 26 year civil war, was arrested shortly after his defeat in the January 2010 presidential election amid his claims that the vote was unfair.

Fonseka is also fighting charges in the High Court of Sri Lanka for allegedly provoking violence and bringing disrepute to the government [JURIST report] in relation to statements made to the Sunday Leader [media website] newspaper. Fonseka suggested that the government of President Mahinda Rajapaksa [BBC profile] ordered the killing of surrendering rebel leaders during the Sri Lankan civil war [JURIST news archive]. In April, Fonseka's trials were postponed [JURIST report] to allow the Court of Appeals of Sri Lanka [official website] to examine the legality of the court-martials.




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Bosnia court indicts military officers for genocide in Srebrenica massacre
Dwyer Arce on August 13, 2010 1:29 PM ET

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[JURIST] The Court of Bosnia and Herzegovina [official website] on Thursday confirmed [press release] that it had issued genocide charges against four former Bosnian Serb soldiers in connection with the 1995 Srebrenica massacre [JURIST news archive]. The indictment alleges that the four men, Franc Kos [case materials], Stanko Kojic, Vlastimir Golijan and Zoran Goronja, were all members of the 10th Sabotage Detachment in the army of Republika Srpska. They are accused of participating in the murder of more than 800 Bosnian Muslims during the massacre, in which a total of 8,000 Bosnian Muslims were killed. In levying genocide charges, it is alleged that the men participated in the killings "with the aim of destroying, in whole or in part, the national, ethnic and religious group of [Bosnian Muslims]." Kos, the commander of the detachment, is alleged to have directed the other three to commit the crimes, and to hunt down those who attempted to escape. The first hearing in the case has not been scheduled.

Last month, the court convicted Marko Boskic [JURIST report] of committing crimes against humanity in the massacre. In June, the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] convicted seven senior Bosnian Serb officials [JURIST report] of war crimes against Bosnian Muslims committed during the massacre. The ICTY trial of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] is still ongoing. Karadzic is the alleged mastermind behind the violence at Srebrenica. His trial resumed in April after the ICTY dismissed [JURIST report] Kardzic's latest motion to delay court proceedings, in which he argued that there had been a violation of his right to a fair hearing because the court had rejected previous evidentiary challenges. Karadzic's alleged co-conspirator, former Bosnian Serb commander Ratko Mladic [case materials; JURIST news archive] is still at large.




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UK to prosecute four officers in alleged assault of terror suspect
Sarah Miley on August 13, 2010 11:58 AM ET

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[JURIST] The UK Crown Prosecution Service (CPS) announced on Thursday that it will charge four former officers [press release] of the UK Metropolitan Police in the alleged assault of terrorism suspect Babar Ahmad [advocacy website; BBC profile]. Police Constables Nigel Cowley, John Donohue, Roderick James-Bowen and Mark Jones are accused of beating Ahmad during a 2003 arrest on suspicion of terrorism charges. Ahmad's supporters claim he suffered 73 injuries [AP report] between his arrest at his home and his arrival at a police station in central London. The officers will be charged in violation of the Offences Against the Person Act 1861 [text]. The CPS originally chose not to prosecute the officers in 2004 after it found that there was insufficient evidence to bring charges against the officers, but decided to reconsider the evidence after the UK High Court ruled in favor of Ahmad in a civil action regarding the assault. The four officers are scheduled to appear before the City of Westminster Magistrates' Court on September 22.

Ahmad, a British citizen, has been incarcerated in the UK since his arrest and is currently awaiting a decision on whether he will be extradited to the US where he faces charges [JURIST report] of terrorism, conspiring to kill Americans and running a website used to fund terrorists and recruit al Qaeda members. In July the European Court of Human Rights (ECHR) [official website] stayed the extradition [JURIST report] of Ahmad, holding that potential punishment could violate Human Rights Convention [text] provisions on the prohibition of torture and inhumane or degrading treatment. The court issued the injunction in order to further examine evidence against Ahmad and determine if the US sentencing standards, which includes life sentencing without parole, would lead to an Article 3 violation. The UK High Court approved the extradition [JURIST report] of Ahmad to the US in 2006 after the US offered assurances that it would not seek the death penalty, try the suspects before military tribunals or declare them enemy combatants.




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Nicaragua high court replaces boycotting judges
Dwyer Arce on August 13, 2010 11:10 AM ET

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[JURIST] The Supreme Court of Nicaragua [official website, in Spanish] on Wednesday replaced seven justices who had been boycotting sessions. The judges, affiliated with the opposition Liberal Constitutionalist Party, had been boycotting the court for 10 months [AP report] following the decision of President Daniel Ortega [official website, in Spanish] to extend the terms of two justices affiliated with his Sandinista party after the National Assembly [official website, in Spanish] refused to replace them. Supreme Court President Alba Luz Ramos stated that the replacements were necessary to continue the functioning of the court, but the Nicaraguan Center for Human Rights argued [El Nuevo Diario report, in Spanish] that the move infringed upon the independence of the judiciary because it didn't follow appropriate procedures and replaced opponents of Ortega with those who support him.

The replacement of the boycotting justices comes amid legal and political controversy over the influence of Ortega and his party. In 2009, a panel of the Supreme Court consisting of members of the Sandinista party struck down a constitutional provision [JURIST report] banning presidential candidates from running for two consecutive terms. Several other Latin American countries have also recently dealt with the controversial issue of extending presidential term limits. In September 2009 the Colombian House of Representatives voted to approve [JURIST report] a bill to hold a referendum on whether President Alvaro Uribe [BBC profile] can run for a third presidential term. In March 2009, then-president of Honduras Manuel Zelaya [BBC profile] proposed a government poll [JURIST report] that would determine whether voters would be receptive to referendum establishing constitutional reform, in which extension of presidential term limits were suspected to be on the agenda.




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China delays Tibet writer's trial: advocacy group
Dwyer Arce on August 13, 2010 10:44 AM ET

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[JURIST] Chinese authorities have delayed the trial [press release] of prominent Tibetan writer Tra Gyal, according to a Friday release by the International Campaign for Tibet (ICT) [advocacy website]. According to the group, Tra Gyal has been held in Xining No. 1 Detention Center without contact from his family or treatment for several medical conditions. ICT suggested the delay may have occurred because authorities are either seeking more evidence, or are reconsidering the basis for the prosecution. Tra Gyal was arrested in April [JURIST report] after he signed a letter critical of the Chinese government's relief efforts following the recent earthquake in the western Qinghai [Xinhua backgrounder] province. Another motivation for his arrest, according to ICT, is related to the publication of The Line between Sky and Earth, a book that is critical of Chinese policy in Tibet and describes the 2008 Tibetan demonstrations [BBC backgrounder; JURIST news archive] as a "reawakening of Tibetan national consciousness and solidarity." Tra Gyal, who writes under the pseudonym Zhogs Dung, was reportedly arrested [AP report] while working at the Nationalities Publishing House in the provincial capital Xining.

Last month, Human Rights Watch (HRW) [advocacy website] charged that Chinese authorities used excessive force [JURIST report] in responding to the and tortured those in custody following the demonstrations in violation of international law. In a report, "I Saw It With My Own Eyes" [materials], HRW said that the Chinese government violated the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [text], which limits the use of force to that which is strictly necessary to protect life or to apprehend perpetrators of violent crimes. The Chinese government also violated international law in its handling of suspects held for involvement in the demonstrations by torturing and brutalizing them, not revealing the conditions in which suspects were held and not allowing the International Committee of the Red Cross (ICRC) [advocacy website] to visit them, according to HRW. It went on to call for the Chinese government to release of all Tibetan detainees that have not been charged with a crime and to release accurate statistics about all Tibetans held and about the number of casualties.




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UN rights committee calls on France to implement plan to end discrimination
Sarah Miley on August 13, 2010 10:28 AM ET

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[JURIST] The UN Committee on the Elimination of Racial Discrimination [official website] on Thursday concluded its review [press release] of France's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [text], holding that while France has a laudable action plan for eradicating racial discrimination, it must increase efforts to make the plan a reality. The debate was launched in 2009 in order to set up guidelines for strengthening France's national identity and the integration of immigrants. Committee Expert Pierre-Richard Prosper applauded certain efforts made by the French government such as language training for immigrants, but stated that France needs to enhance its compilation of population statistics in order to successfully implement the national plan for eliminating racial discrimination. The report also raised questions pertaining to draft legislation which would strip naturalized citizens of citizenship for committing certain crimes and a recent decision to dismantle 300 unauthorized Roma [JURIST news archive] encampments. Committee experts stated that despite France's efforts, the Roma community still encounters significant economic and social difficulties. The report also addressed issues of travelers in France and their rights as European Union citizens, racism in sports, and measures taken to ban religious symbols in school. The Committee will present its written observations and recommendations on the report of France at the end of its session, which concludes on August 27.

Several issues addressed in the Committee's report on France has come under international scrutiny. Last month French President Nicolas Sarkozy [official website, in French] ordered measures [JURIST report] against illegal Roma communities in France and announced new legislation aimed at making their deportation easier. The announcement comes a week after riots by members of the Roma community sparked by the shooting of a young man, resulting in the deployment of 300 troops [DW report]. The government aims to dismantle half of illegal Roma camps in the country within three months and to immediately deport of all those found to have broken the law. Earlier that month, the French National Assembly [official website, in French] approved a bill [JURIST report] that would make it illegal to wear the Islamic burqa [JURIST news archive] or other full face veils in public. Under the legislation, women who wear the veil can be required by police to show their face, and, if they refuse, they can be forced to attend citizenship classes or be charged a USD $185 fine. The proposed legislation would also make it a crime to force a woman to cover her face, with a penalty of one year in prison and a fine of USD $18,555. Amnesty International (AI) [advocacy website] condemned the vote [press release] stating, "A complete ban on the covering of the face would violate the rights to freedom of expression and religion of those women who wear the burqa or the niqab as an expression of their identity or beliefs."




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Khadr trial suspended after opening arguments
Dwyer Arce on August 13, 2010 9:01 AM ET

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[JURIST] The military trial of Canadian Guantanamo Bay [JURIST news archives] detainee Omar Khadr [DOD materials; JURIST news archive] was suspended Friday, following the collapse of his lawyer during opening testimony. The lawyer, Lt.-Colonel Jon Jackson, was airlifted to mainland medical facilities [Reuters report] following the collapse, which is attributed to complications from gall bladder surgery. Jackson is Khadr's only lawyer, and is the only member of his defense team authorized to address the court. Due to his absence, the trial may be suspended until October [CNews report]. The collapse came during opening arguments Thursday, in which prosecutors argued that Khadr was a willing al Qaeda [CFR backgrounder] operative who had adopted their ideology as his own. Prosecutors introduced video allegedly depicting Khadr making an explosive in Afghanistan and argued that he had proudly confessed to being a member of al Qaeda and to killing a US soldier during his interrogation by US forces. Jackson countered that Khadr was a victim of his father, alleged al-Qaida financier Ahmed Said Khadr, who had taken his son with him to Afghanistan shortly after the US-led invasion. Jackson stated that Khadr's confession was not reliable [NYT report] because it came only after Khadr was told a story of an uncooperative detainee that was imprisoned and raped during incarceration. The trial was conducted with a seven member jury made up of US military officers. Khadr faces a life sentence if convicted.

The trial began Tuesday with jury selection after Khadr pleaded not guilty to charges of murder and terrorism [JURIST reports] for allegedly throwing a grenade that killed one US soldier and injured another when he was 15. UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy [official profile] criticized Tuesday's proceedings [press release], arguing the trial would set a dangerous precedent for child soldiers [CFR backgrounder] worldwide. She explained that "[c]hild soldiers must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation or restorative justice." The trial has also been criticized by Canadian Senator Romeo Dallaire (L-QC) [official website], who has questioned the legitimacy of the proceedings. US military judge Army Colonel Patrick Parrish ruled Monday that the video and confession were admissible at trial. On Friday, the US Supreme Court refused to block the trial, and last month, the US District Court for the District of Columbia refused to lift the stay [JURIST reports] on his habeas corpus petition pending the conclusion of the trial.




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US military officer sues to prevent discharge under 'Don't Ask Don't Tell'
Dwyer Arce on August 13, 2010 8:56 AM ET

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[JURIST] A US military officer on Wednesday filed a lawsuit [complaint, PDF] seeking to enjoin the military from discharging him under "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive]. The lawsuit, filed in the US District Court for the District of Idaho [official website], seeks a temporary restraining order preventing the discharge of Lt.-Colonel Victor Fehrenbach, arguing that allowing the military to discharge him would violate his constitutional rights and cause irreparable harm. The complaint argues that under the US Supreme Court case of Lawrence v. Texas [text] and Witt v. Department of the Air Force [JURIST report] from the US Court of Appeals for the Ninth Circuit, a discharge under DADT is constitutional only if it survives a heightened scrutiny analysis as applied specifically to the particular service member. Under this precedent, the complaint argues, the discharge must promote "morale, good order and discipline, and unit cohesion." Citing Fehrenbach's service record, the lawsuit explained:
DADT is unconstitutional as applied to Lt. Col. Fehrenbach because the government did not offer any evidence ... establishing that discharging Lt. Col. Fehrenbach for engaging in consensual sexual relations with a civilian of the same sex in the privacy of his offbase home significantly furthers the goal of maintaining discipline, good order, morale and unit cohesion. ... The Air Force's evidence was insufficient to meet its heavy burden[.] ... [It] failed to present any evidence ... to support its claim that Lt. Col. Fehrenbach's continued service on active duty would hinder those goals. On the contrary, the evidence establishes that discharging Lt. Col. Fehrenbach would, in fact, be detrimental to morale, good order and discipline, and unit cohesion.
The suit went on to quote statements made by Chairman of the Joint Chiefs of Staff Adm. Mike Mullen and Defense Secretary Robert Gates [official profiles] in which they argued that the DADT policy itself does not promote these interest. It also argued that even if the policy were constitutional as applied to Fehrenbach, the military did not follow the necessary legal procedures during the investigation and discharge proceedings.

Last month, the US District Court for the Central District of California began the trial in a case challenging [JURIST report] the constitutionality of DADT. Plaintiffs in the case argued that the military policy violates the First Amendment [Cornell LII backgrounder]. Plaintiffs argued that under Lawrence and later precedent, the government must show that an interference with the private life of homosexuals is "necessary to further [important government interests]." In May, the House of Representatives and the Senate Armed Services Committee voted to repeal the policy after a compromise was reached [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects it would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.




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Alabama AG sues BP over Gulf oil spill
Sarah Miley on August 13, 2010 8:52 AM ET

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[JURIST] Alabama Attorney General Troy King [official website] on Thursday filed a lawsuit against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. King filed an additional lawsuit in the federal district court in Montgomery on Thursday against Transocean, Halliburton [corporate websites] and other companies associated with the oil spill on similar claims. The attorney general is seeking economic and punitive damages from the companies for negligent or wanton failure to adhere to recognized industry standards. The amount of damages being sought has not been specified. The lawsuits were opposed [AP report] by Alabama Governor Bob Riley (R) [official website] who had hoped to settle the dispute outside of the courtroom.

Numerous lawsuits are pending against BP in connection with the Deepwater Horizon spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, Attorney General Eric Holder [official website] announced that the US Department of Justice (DOJ) [official website] is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill. Earlier this week BP and the DOJ announced the completion of negotiations over the implementation of a $20 billion fund [JURIST report] to aid victims of the oil spill. At the completion of the deal, BP made a $3 billion initial deposit into the fund, with another $2 billion planned for the fourth fiscal quarter of 2010.




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UK control orders violate suspects' rights: AI
Daniel Richey on August 13, 2010 7:39 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday issued a report [text, PDF; press release] calling on the UK government to end the use of control orders issued against terrorism suspect. The UK Home Secretary [official website] uses control orders [Guardian backgrounder; JURIST news archive] to impose a variety of legal restrictions on individuals suspected of terrorism-related activity, regardless of the suspect's citizenship status or whether he or she has been convicted of any wrongdoing. Restrictions can include curfews, limits on internet access, restrictions on travel, and limitations on employment, school, access to bank accounts and contact with other people. AI has heavily criticized the system in the past, characterizing the orders as legal sanctions without trial [press release]. In the new report the group calls for the repeal of the legislation that created the control order system, the Prevention of Terrorism Act of 2005 (PTA) [text]. AI Europe and Central Asia Program Director Nicola Duckworth explained the group's opposition to the law:
The measures used under the PTA have created a parallel, unfair and secretive shadow justice system for individuals who are suspected of terrorism-related activity. The effect of the control order regime has been to bypass the ordinary justice system ... The secret court procedures in control order hearings undermine the individual's right to a fair hearing and the restrictions the control order imposes on a person can amount to a deprivation of liberty.

The group recommends that the UK government repeal the PTA "immediately," commit to using the normal criminal justice system to prosecute suspected terrorists and make legal remedies available to those whose liberties may have been wrongfully constrained by control orders.

Uncertainty regarding how control orders fit in the UK's conventional justice system and the human rights impact they carry continues to generate controversy. Last month, the UK Court of Appeal [official website] ruled [decision text; JURIST report] that two terrorism suspects could sue the government for damages over wrongfully imposed control orders. In June, the UK Supreme Court ruled [JURIST report] that a control order requiring an anonymous appellant to live 150 miles away from his family and operate under a 16-hour curfew violated his rights under the European Convention of Human Rights (EHCR) [text]. In September, then-Home Secretary Alan Johnson [BBC profile] said the government would undertake a review [JURIST report] of the system. Johnson issued a ministerial statement [text] saying that his "current assessment is ... that the control order regime remains viable," but that he would "be keeping this assessment under review." In October 2007, the UK Law Lords ruled in a series of decisions that the government can continue to impose control orders [JURIST report] on terror suspects in lieu of detention, but said that some elements of the orders violate human rights.




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Federal judge to lift stay on California same-sex marriage
Dwyer Arce on August 12, 2010 3:16 PM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Thursday refused to issue a stay pending appeal [order, PDF] on last week's decision overturning Proposition 8, the California ban on same-sex marriage [JURIST news archives]. Last week, Judge Vaughn Walker held that the ban violated the guarantees of due process and equal protection [JURIST report] under the US Constitution, but immediately stayed the ruling. In denying the motion to extend the stay pending appeal, Walker considered whether the proponents of Proposition 8 were likely to succeed on appeal and whether they would be irreparably harmed absent a stay. Walker found that the proponents could not meet the first criterion because their standing to appeal the case was doubtful, finding that "nothing in the record shows proponents face the kind of injury required for Article III standing." Without a state party to appeal the decision, Walker found, it was doubtful that the appellate court would be able to rule on the appeal's merits. Walker also rejected proponents' arguments that lifting the stay would cause them harm, finding they had "failed to articulate even one specific harm they may suffer as a consequence" of lifting the stay. Walker concluded that extending the stay would harm the plaintiffs:
Proposition 8 violates plaintiffs' equal protection and due process rights, and the court presumes harm where plaintiffs have shown a violation of a constitutional right. But no presumption is necessary here, as the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled. ... [A] stay would force California to continue to violate plaintiffs' constitutional rights and would demonstrably harm plaintiffs and other gays and lesbians in California[.]
Under the ruling, Walker ordered the state to cease enforcement of Proposition 8 starting at 5 PM August 18. Immediately following last week's decision, the proponents filed a notice of appeal [text, PDF]. The case will now go to the US Court of Appeals for the Ninth Circuit [official website], which will accept [scheduling order, PDF] appellants' opening brief in November.

On Friday, California Governor Arnold Schwarzenegger, Attorney General Jerry Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, now leaving defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The Alliance Defense Fund [advocacy website], another party defending the law, called the decision a "disappointing one" [press release] which "gut[s] the core of the American democratic system." The organization has stated that it will appeal the case to the Supreme Court if necessary.




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Press group: South Africa media tribunal threat to journalism
Daniel Richey on August 12, 2010 2:40 PM ET

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[JURIST] The Vienna-based International Press Institute (IPI) [official website] sent an open letter to South African President Jacob Zuma [official profile; JURIST news archive] on Wednesday expressing concerns over plans by the African National Congress (ANC) [party website] to create a special court to punish press outlets that publish sensitive state information. If passed, the Protection of Information Bill [text, PDF], which is now before the Parliament [official website], would criminalize the dissemination or publication of information classified as essential to national security with up to 25 years in prison. The accused would appear before the government-appointed Media Appeals Tribunal. In the letter, IPI Interim Director Alison Bethel-McKenzie said that such a system would amount to government censorship:
IPI believes that any Media Appeals Tribunal will not be independent. If the MAT is appointed by parliament, it will face an inherent conflict of interest that will skew its rulings in favour of public and party officials and essentially amount to government oversight of the media—which is unacceptable .... [T]he [Protection of Information] Bill provides for a very low threshold for the classification of information, but at the same time imposes draconian penalties on those who reveal that information—without providing for a public interest defense ... an unfair penalty system that encourages secrecy and could lead to the erosion of investigative journalism.
The IPI stressed that the Press Council of South Africa [official website] already acts as a policing body on the nation's press, forcing publishers to adhere to ethical guidelines and retract inaccurate information.

On Sunday, a group of South African journalists expressed disdain [statement; JURIST report] for the proposed regulations, claiming they will inhibit freedom of expression. This is not the first sign of tension between the ANC and the South African media. Recently, there have been many reports on Zuma's lavish spending on luxury vehicles. In 2005, the Johannesburg High Court banned the release [JURIST report] of a newspaper article revealing a corruption scandal involving the nation's ruling ANC, requiring South Africa's leading independent newspaper, the Mail and Guardian [media website] to prevent the distribution of its entire 45,000 issue run.




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Texas AG challenges drilling moratorium
Drew Singer on August 12, 2010 1:29 PM ET

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[JURIST] Texas Attorney General Greg Abbott (R) [official website] on Wednesday filed a legal challenge [complaint, PDF] to the Obama administration's new offshore drilling moratorium [JURIST news archive], claiming it violates federal law. The complaint, filed in the US District Court for the Southern District of Texas [official website], argues that the moratorium was created in violation of the Outer Continental Shelf Lands Act [text, PDF], which requires the US Department of the Interior to "cooperate with the relevant departments and agencies of the Federal Government and of the affected states." The act, which affects all decisions relating to the "exploration, development, and production of minerals in the Outer Continental Shelf," also says states are entitled to an opportunity to participate in the process. Abbott said that the federal government ignored his state [press release] throughout the process:
Under federal law, affected states are guaranteed the right to participate in offshore drilling-related policy decisions, but the Obama Administration did not bother to communicate, coordinate or cooperate with Texas. Worse, the Secretary of the Interior failed to consider the economic consequences of his decision, which will cost the Texas economy millions of dollars - and threatens far too many hard-working Texans' jobs.
In addition to requesting the moratorium to be reversed, the complaint also requests that no future moratoriums be allowed unless Texas is given a reasonable opportunity to participate in the process and "due consideration is given to economic, social, and environmental values of the renewable and nonrenewable resources contained in the [Outer Continental Shelf]."

Last month, Interior Secretary Ken Salazar issued a new six-month drilling moratorium [JURIST report], citing new evidence regarding safety concerns after the BP oil spill. Unlike the previously ordered moratorium, which a federal judge blocked [JURIST report] in June, this one is not based on the depths at which drilling occurs. Instead, the moratorium affects drilling with specific technologies, although the applicable technologies are most often used during deepwater drilling and will not affect shallow water drilling operations. The new plan, the government says, offers more specifics on the types of drilling that will and will not be blocked. More than 200 million gallons of oil leaked from a broken pipe in BP's Deepwater Horizon oil rig, surpassing the Exxon Valdez oil spill [JURIST news archive] as the worst in US history.




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Federal appeals court dismisses suit over Armenian genocide curriculum
Dwyer Arce on August 12, 2010 12:01 PM ET

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[JURIST] A panel of the US Court of Appeals for the First Circuit [official website] on Wednesday unanimously dismissed a lawsuit [opinion text] challenging the exclusion of materials questioning the Armenian genocide [BBC backgrounder; JURIST news archive] from a school curriculum. The lawsuit [case materials] was filed in 2005 by the Assembly of Turkish American Associations (ATAA) [advocacy website] after the Massachusetts Board of Elementary and Secondary Education [official website] removed materials from the school curriculum that called into question the circumstances and events of the Armenian genocide. The plaintiffs alleged that this violated their First Amendment [Cornell LII backgrounder] rights because it interfered with their right to "inquire, teach and learn free from viewpoint discrimination." The US District Court for the District of Massachusetts [official website] dismissed the lawsuit [order text] in 2009, finding that it was time barred and that it was a form of government speech and was therefore "exempt from First Amendment scrutiny." In upholding that decision, former US Supreme Court justice David Souter, sitting by designation, found that this case could not fall under the precedent set in Board of Education, Island Trees Union Free School District No. 26 v. Pico [opinion text], explaining:
[In ruling for the plaintiffs,] [w]e would have to hold that any compliant response to an expression of political opinion critical of a school library's selection of books would violate a First Amendment right to free enquiry on the part of library patrons[.] ... When it comes to judicial supervision of school curriculums, all [precedent] point[s] in the same direction and against extending the Pico plurality's notion of non-interference with school libraries as a constitutional basis for limiting the discretion of state authorities to set curriculum.
Souter went on to express the concern that adopting the ATAA's argument in the case would have the effect of "foreclosing future opportunities for open enquiry in the classroom."

The Armenian genocide remains a contentious issue in US politics and law. In March, the Obama administration announced its opposition to a resolution [JURIST report] labeling the World War I-era killings as genocide. The announcement came after the US House of Representatives Committee on Foreign Affairs passed the resolution [JURIST report] by a vote of 23-22. Turkish Prime Minister Recep Teyyip Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US. In 2009, the US Court of Appeals for the Ninth Circuit [official website] ruled that a California state law that allows descendants of victims of the genocide to sue in state courts [JURIST report] for unpaid insurance benefits is unconstitutional. The court found that it "interfer[ed] with the national government's conduct of foreign relations" because the federal government has declined to describe the World War I-era killings of over one million Armenians by Turkish soldiers as genocide.




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Turkey to conduct investigation into flotilla raid
Dwyer Arce on August 12, 2010 11:00 AM ET

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[JURIST] The Turkish Foreign Ministry [official website] announced Wednesday that it will conduct an investigation [press release, in Turkish] into the May flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. The investigatory commission will operate under the office of Prime Minister Recep Tayyip Erdogan [official website, in Turkish; BBC profile] and will prepare a report to be presented to the UN panel established earlier this month [JURIST report] to investigate the incident. The Turkish commission includes officials from the Foreign Ministry and the ministries of Justice, Interior and Transportation. The commission's findings are expected to be presented to the UN panel before it submits its first report, expected in September. The commission will join another set up by the Turkish government shortly following the flotilla incident. The earlier commission was set up to investigate criminal charges against Israeli leaders [Hurriyet report] involved in the incident, such as murder and piracy [JURIST news archive]. On Tuesday, Foreign Minister Ahmet Davutoglu [official profile] urged the Israeli government to admit sole responsibility [Haaretz report] for the incident. Israeli actions are also being investigated by another UN panel established by the UN Human Right Council (UNHRC) [official website], with which Israel is not expected to cooperate [JURIST reports].

The Israeli government has established two internal commissions to investigate its response to the flotilla, one military and one civilian [JURIST reports]. Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] testified before the civilian commission Monday that Israel did not violate international law [JURIST report]. During his testimony, Netanyahu expressed confidence that the commission would find Israeli actions to be in compliance with international law and explained the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas [CFR backgrounder]. Netanyahu continued to accuse Hamas of "at least four war crimes: inciting to genocide; systematically and intentionally firing on civilians; using civilians as human shields; and preventing visits by the Red Cross to kidnapped IDF soldier, Gilad Shalit." Earlier this month, an Israeli military probe found insufficient intelligence and planning [JURIST report] in the raid in a report, but also concluded that no punishments were necessary. Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza in May. The raid left numerous wounded and resulted in the deaths of nine pro-Palestine activists—eight Turks and one American.




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US military jury recommends 14-year sentence for Guantanamo detainee
Dwyer Arce on August 12, 2010 8:51 AM ET

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[JURIST] A US military jury on Wednesday recommended a 14-year sentence for Sudanese Guantanamo Bay [JURIST news archive] detainee Ibrahim Ahmed Mahmoud al Qosi [DOD materials; JURIST news archive]. Al Qosi agreed to a plea deal Tuesday after pleading guilty [JURIST reports] to charges of conspiracy and providing material support for terrorism in July. The details of the plea agreement will remain sealed until he is released from prison. The 10-member jury was not informed of the plea deal, and, if their suggested sentence exceeds that of the plea agreement, their recommendation will be set aside. Judge Nancy Paul also found that the US military had failed to develop plans [Guardian report] for the housing of convicted detainees during their sentence. She ruled that al Qosi will be allowed to remain at Camp 4, a facility at Guantanamo reserved for the best behaved detainees, until the military finds a place to house him for the remainder of his sentence. The plea deal originally urged the judge to recommend that al Qosi serve the entirety of his sentence at Camp 4, but Paul rejected this [AP report] because military rules forbid communal housing of convicts. Paul still found the plea deal to be valid because the Camp 4 provision was only a recommendation. The details of al Qosi's sentencing will not be revealed until it is reviewed by Defense Department officials. Following the conviction, Human Right Watch (HRW) [advocacy website] criticized the proceedings [LAT report] for the secrecy surrounding the plea deal. Before the agreement, al Qosi faced possible life imprisonment after pleading guilty to supporting al Qaeda [CFR backgrounder] in their hostilities against the US since 1996, acting as the group's cook and accountant in the 1990s and as a bodyguard for Osama bin Laden [CFR profile] in later years.

Al Qosi's sentencing marks the fourth time a Guantanamo detainee has been convicted by a military tribunal since the detention center opened in 2002 and the first time a captive has been convicted since the Obama administration ordered the facility shut down [JURIST report] in 2009. The American Civil Liberties Union (ACLU) [advocacy website] recently reiterated its call to end military commissions [press release] and try Guantanamo detainees in civilian courts. Al Qosi has been detained at Guantanamo since he was transferred there from Afghanistan in 2002. In December, a military judge ruled that the US government could partially amend the charges [JURIST report] against al Qosi by changing his jurisdictional basis but could not include four additional years of alleged activities under the charges. In October, military judges granted continuances [JURIST report] for prosecutors in the case against al Qosi. At the time, it was expected that the continuances would make way for a decision on whether to hold the remaining Guantanamo detainee proceedings in civilian or military court.




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Florida AG proposes Arizona-style immigration law
Erin Bock on August 12, 2010 8:11 AM ET

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[JURIST] Florida Attorney General Bill McCollum (R) [official website] on Wednesday proposed tougher laws against illegal immigrants. McCollum unveiled a draft [text, PDF] of the new legislation, which goes "one step further" than a controversial Arizona immigration law [SB 1070 materials; JURIST news archive] by giving more leeway to judges and law enforcement officers in the prosecution of those suspected of being illegal immigrants. The proposed law would require immigrants to carry immigration documentation, and those found in violation would be charged with a misdemeanor and could face a sentence of up to 20 days in jail for their first offense. Illegal immigrants attempting to seek employment in Florida when not authorized to work would face misdemeanor charges as well. Judges would be allowed to consider a defendant's illegal status when setting bond. There are also proposed sentence enhancements for illegal immigrants found to have committed a crime, such as domestic violence in the presence of a child and gang activity. McCollum cited safety concerns in voicing his support of the 29-page document and applauded the legislation's "new enforcement tools" that will prevent Florida from becoming "a sanctuary state for illegal aliens."

McCollum's staff attorneys made changes to the proposed legislation in response to a ruling by a federal judge in Arizona [JURIST report] two weeks ago that enjoined several provisions of Arizona's immigration law, which was set to go into effect at the end of last month. Judge Susan Bolton sided with the US Department of Justice [official website] in determining that provisions of the law could impair the government's ability to enforce federal immigration policy and violate the Supremacy Clause [LII backgrounder] of the US Constitution. Bolton enjoined several provisions, including those requiring verification of the immigration status of individuals reasonably suspected of being illegal immigrants and authorizing warrantless arrests of those police have probable cause to believe have committed an offense that could lead to deportation. Bolton also enjoined a provision requiring non-citizens to carry their immigration papers with them at all times. Arizona Governor Jan Brewer (R) [official website] filed an expedited appeal [JURIST report] to the US Court of Appeals for the Ninth Circuit [official website] asking them to lift the injunction, which the court subsequently denied the next day [JURIST report]. A hearing in the matter is set to occur the week of November 1.




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Sri Lanka war crimes commission begins public hearings
Daniel Richey on August 11, 2010 6:31 PM ET

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[JURIST] A Sri Lankan government-backed commission investigating the events surrounding the island nation's civil war [JURIST news archive] opened [press release] its first public hearings on Wednesday. The Lessons Learnt and Reconciliation Commission (LLRC), appointed [press release] in May by Sri Lankan President Mahinda Rajapaksa [official profile], has been criticized [HRW release] as a superficial attempt to stave off an international investigation into accusations of widespread and severe human rights abuses by government forces during the war. Critics claim that the commission lacks adequate checks to ensure impartiality and has no mandate to investigate the reported deaths and disappearances of thousands of civilians during the conflict. Also Wednesday, the US State Department (DOS) released a report [text] assessing the Sri Lankan government's response to international calls for an investigation. The report states that a first investigation "did not appear to investigate allegations or to make any recommendations pursuant to its mandate," and called into question the composition of the LLRC:
[There are] questions concerning the independence and impartiality of some members of the commission, including the former Attorney General who served in that capacity in the 2006 Col and is now the chair of the new LLRC. His relationship to the government and his involvement in the failure of the previous commission, which also sought to investigate incidents of alleged government involvement in violations by security forces, could compromise the independence and impartiality of the LLRC.
The report indicated that the DOS would "continue to evaluate whether the commission is acting consistent with ... [the] best practices," judging its effectiveness on criteria such as independence and competence of members, adequate mandate and authority to investigate, the capacity to protect witnesses, adequacy of the commission's resources, the presence of a public report and the degree to which the government responds to the commission's recommendations.

International pressure on Sri Lanka to conduct a thorough investigation into the civil war continues to mount. In July, UN Secretary-General Ban Ki-moon [official profile] called on the Sri Lankan Government [press release; JURIST report] to improve conditions around UN offices in Colombo after a UN announcement [press release; JURIST report] of the formation of an international panel to investigate human rights abuses during the war resulted in days of pro-government protests [JURIST report] near UN offices. Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the 30-year civil war. In May, Human Rights Watch [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also in May, the International Crisis Group [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the war escalated in January 2009, leaving thousands more dead than projected by the UN.




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Radical Indonesia cleric charged with terrorism
Daniel Richey on August 11, 2010 4:29 PM ET

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[JURIST] Indonesian authorities on Wednesday charged well-known radical Muslim cleric Abu Bakar Bashir with aiding an al Qaeda [CFR backgrounder; JURIST news archive] linked terrorist cell. Bashir, who was arrested Monday [Kompas report, in Indonesian] is accused of operating a terrorist training camp in the mountains of the northwestern province of Aceh to prepare Islamic radicals to carry out attacks in the capital of Jakarta. The cleric has long been rumored to be associated with Jemaah Islamiyah (JI) [CFR backgrounder], a terrorist group with links to al Qaeda that has been implicated in a multitude of attacks in the island nation, including a 2002 Bali nightclub bombing [JURIST news archive] that left more than 200 people dead. Bashir has repeatedly denied having ties with JI, but prosecutors claim an Indonesian National Police (INP) [official website, in Indonesian] investigation has unearthed [Kompas report, in Indonesian] both witness testimony and financial documents decisively tying him to the group. During an interrogation at INP headquarters in Jakarta Wednesday, Bashir answered only one of 50 questions [Kompas report, in Indonesian], responding only to an inquiry as to where he was arrested. Bashir will be charged under Law No. 15 of 2003 [text, in Indonesian], an anti-terrorism statute passed in the aftermath of the Bali nightclub bombing. He faces a maximum penalty of death.

In 2006, the Indonesian Supreme Court [official website, in Indonesian] overturned [JURIST report] Bashir's conviction by a lower court on conspiracy charges connecting him with the 2002 Bali bombings. He was released from prison [JURIST report] earlier in 2006 after spending 26 months in jail on different charges related to the bombings. His sentence was reduced [JURIST report] in 2005 pursuant to Indonesian custom in observance of the country's independence day.




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Taiwan prosecutors conduct raids in judicial corruption case
Dwyer Arce on August 11, 2010 1:41 PM ET

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[JURIST] The Taipei Prosecutors Office [official website] on Wednesday raided the homes of several current and former High Court judges suspected of accepting bribes in exchange for reduced sentencing, and arrested five more suspects in the case. Three judges were arrested [JURIST report] last month on corruption charges. The three judges, all from the Taiwan High Court [official website, in Chinese] are believed to have accepted more than NT $5 million (USD $155,000) offered to them by Ho Chi-hui in return for a not-guilty verdict granted in May. Ho, a former legislator, had been appealing a 19-year sentence and NT $220 million (USD $6.8 million) fine handed down in 2004 [CNA report] in relation to a corrupt land-development project. The judges were suspended following their arrest. A fourth High Court judge is also under investigation, but has not been arrested. The arrests prompted President Ma Ying-jeou [official website] to form a division of the Justice Ministry dedicated to corruption. A total of 18 locations were searched [Taiwan News report] on Wednesday in Taipei and the surrounding counties, seeking evidence of the deals.

The arrests came just one month after the High Court denied the bail request [JURIST report] of former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive], who is appealing a 20-year conviction for corruption and embezzlement. Chen was originally sentenced to life imprisonment, but the court reduced his sentence [JURIST reports] in June after finding that he had not embezzled as much money as previously thought. Chen was originally found guilty on corruption charges and sentenced to life in prison in September. His wife was also given a life sentence [CNA report] after the pair were convicted on charges of embezzlement, receiving bribes, forgery and money laundering. Chen has maintained his innocence against all charges, claiming that Ma is using Chen's trial to distance himself from Chen's anti-China views. Chen was also indicted in December for allegedly embezzling USD $20 million from banks [JURIST report] that sought to protect themselves during Chen's financial reform program.




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Lebanon tribunal calls for evidence in ex-PM murder
Drew Singer on August 11, 2010 1:35 PM ET

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[JURIST] The UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive] on Wednesday called for the submission [press release] of any evidence related to the assassination of former Lebanese prime minister Rafik Hariri [JURIST news archive]. The statement released by the STL Office of the Prosecutor invites "anyone who has relevant information to submit it to my office. Indeed, I welcome any information that can bring us closer to the truth. I can assure those who bring this information that it will be thoroughly assessed." The statement went on to call on Hezbollah Secretary General Hassan Nasrallah [BBC profile] to turn over all information he possesses to the STL. The request comes eight days after Nasrallah claimed to have proof that Israel was behind the assassination [AFP report]. Nasrallah said he would present concrete evidence proving that Israeli agents had sought to exploit divisions between Hariri's March 14 Alliance and the opposition March 8 Alliance, of which Hezbollah [CFR backgrounders] is a member. Nasrallah has not yet released the evidence.

In February, the head of the STL reassured [JURIST report] the Lebanese public that the investigation is on track. When asked about the progress of the investigation into the death of Hariri, the head of the STL "underlined the fact that the Tribunal already has in place all the legal and administrative instruments necessary for its work, and is fully operational so that justice may be dispensed with complete independence and impartiality in accordance with the highest international standards." The STL was established in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut in February 2005.




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Maldives parliament seats Supreme Court
Dwyer Arce on August 11, 2010 12:41 PM ET

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[JURIST] The Supreme Court of the Maldives [BBC backgrounder] was seated Tuesday [press release] after the parliament passed stalled legislation making the body permanent. The legislation, the Act on Judges, was passed by the People's Majlis [official website, in Dhivehi] and makes the country's interim Supreme Court [official website, in Dhivehi] permanent, setting the powers and responsibilities of the court [CP report] and the rules on judges' appointment and salaries. Following the passage of the bill, the Majlis approved the appointments to the court made by President Mohamed Nasheed [official website]. Officials praised the legislation as creating an independent judiciary [AFP report] and strengthening the Maldivian democracy. The original failure to pass the legislation caused the resignation [JURIST report] of Attorney General Husnu Al-Suood [official website] Sunday. In his resignation letter, Al-Suood accused the opposition-controlled legislature of having "deliberately not attended to its duties," making it impossible for the Attorney General's Office to function. Nasheed responded by issuing a decree creating a substitute interim body to fulfill the basic administrative duties of the Supreme Court. Press Secretary Mohamed Zuhair chastised the legislative opposition for its failure to permanently institute the court. On Monday, the nation's high Civil Court ruled [Miadhu report] that the interim Supreme Court could not be disbanded before the establishment of a permanent Supreme Court.

The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. Nasheed defeated longtime political opponent Maumoon Abdul Gayoom [BBC profile], who had jailed him numerous times during his 30-year rule. However, Nasheed's ruling Maldavian Democratic Party holds only 32 of 77 seats in the parliament, while the opposition Dhivehi Raithunge Party [party websites] holds 36. Opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June. Replacement appointments have been made, but have yet to be ratified by the Majlis. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption. The new constitution was drafted in response to international criticism [AI report, PDF] of 2003 government actions against protesters of prison conditions in the country.




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Costa Rica high court removes same-sex civil unions from ballot
Dwyer Arce on August 11, 2010 11:33 AM ET

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[JURIST] Chamber IV of the Supreme Court of Costa Rica [official website, in Spanish] ruled 5-2 Tuesday to disallow a nationwide referendum on whether to recognize same-sex civil unions [JURIST news archive]. The referendum was to be on the ballot during the December municipal elections after qualifying for the ballot through a petition. The Supreme Tribunal of Elections [official website, in Spanish] had certified the referendum for the ballot following the petition process, citing the absence of guidance from the courts. The court found that allowing the referendum to go forward would target homosexuals for discrimination and violate their rights under international law [Tico Times report]. The court held that minority rights cannot be subject to majority approval. The court also found that the government must protect homosexual rights due to this discrimination and that the question of same-sex unions was one for the Legislative Assembly [official website, in Spanish]. The assembly has been considering a bill to legalize same-sex civil unions but would not allow same-sex marriage [JURIST news archive] or adoption by same-sex couples. In 2006, Supreme Court ruled 5-2 to uphold a law banning same-sex marriage [JURIST report], rejecting arguments that the law was unconstitutional because it violates the principles of equality and autonomy. The court said that marriage is historically understood to be limited to opposite-sex couples.

Also on Tuesday, the Supreme Court of Mexico [official website, in Spanish] ruled 9-2 that same-sex marriages performed in Mexico City must be recognized nationwide [JURIST report]. The court found that although Mexico's 31 states are not required to allow same-sex marriages to be performed in their jurisdictions, they must confer marital rights to same-sex couples married in Mexico City. The decision came one week after the court ruled 8-2 that the Mexico City's same-sex marriage law is constitutional [JURIST report]. Same-sex civil unions are currently recognized in the Mexican state of Chihuahua and Uruguay [JURIST report]. Last month, Argentine President Cristina Fernandez [official website, in Spanish] signed a same-sex marriage bill into law after the bill was approved by the legislature [JURIST reports], making Argentina the first Latin American country to legalize same-sex marriage nationwide. Last week, a US federal judge ruled that the California state ban on same-sex marriage violates the US Constitution [JURIST report]. Same-sex marriage is currently recognized in several US jurisdictions, and nationwide in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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Thailand Supreme Court dismisses ex-PM's asset seizure appeal
Dwyer Arce on August 11, 2010 10:59 AM ET

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[JURIST] The Supreme Court of Thailand [GlobaLex backgrounder] ruled 103-4 Wednesday to deny an appeal by former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive] contesting the seizure of his assets. Thaksin filed the appeal in March after the Constitutional Court ordered that 46.4 billion baht (USD $1.4 billion) of his fortune be seized [JURIST reports] the month prior. The court had found him guilty of using his power in office to personally benefit himself and other family members. The Supreme Court, sitting in a two-hour plenary session of 142 judges, declined to review the decision because Thaksin had not presented any new evidence [AFP report] in the case. The decision marks the final appeal available [Bangkok Post report] to Thaksin and allows the government to carry out the order. In filing the appeal, Thaksin's lawyers claimed that the Constitutional Court had wrongfully ordered the seizure of assets and asked for a reconsideration of his case. Noppadon Pattama, Thaksin's legal advisor, said that new evidence had come to light [AFP report] showing that Thaksin did not abuse his power while in office to benefit himself.

Thaksin has been plagued by legal problems since the 2006 coup [JURIST report] that removed him from power. Last month, the criminal division of Supreme Court issued a new arrest warrant [JURIST report]against him at the request of the National Anti-Corruption Commission (NACC) [official website], which charges that Thaksin did not report all of his assets to the commission. Also last month, Thai police recommended terrorism charges [DPA report] against Thaksin and 24 others for their alleged involvement in the recent political violence [JURIST news archive] in Bangkok. Thaksin is considered the figurehead of the pro-democracy protesters known as the red shirts [BBC backgrounder] who protested against Thailand's current government and called for elections. The protests ended in May after protesters surrendered to police [JURIST report].




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Mexico high court rules Mexico City same-sex marriages must be recognized nationwide
Dwyer Arce on August 11, 2010 9:49 AM ET

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[JURIST] The Supreme Court of Mexico [official website, in Spanish] ruled 9-2 Tuesday that same-sex marriages [JURIST news archive] performed in Mexico City must be recognized nationwide. The court found that although Mexico's 31 states are not required to allow same-sex marriages to be performed in their jurisdictions, they must confer marital rights to same-sex couples married in Mexico City. The two dissenting justices argued that the ruling would violate the principles of federalism [El Universal report, in Spanish] and allow same-sex couples to circumvent state law by traveling to the capital to get married. Although the court did not clarify exactly which marital rights must be recognized by state governments, it has been speculated that it will apply [NYT report] to rights such as alimony, inheritance and the coverage of spouses under the federal social security system. The court also heard arguments on whether adoptions by same-sex couples allowed under the Mexico City law is constitutional. The decision is expected later this week. Tuesday's decision comes one week after the court ruled 8-2 that the Mexico City's same-sex marriage law is constitutional [JURIST report]. The law, passed last year [JURIST report], was challenged by Mexican Attorney General Arturo Chavez [official website, in Spanish], who had argued that allowing same-sex marriages violates the guarantee of familial integrity under the Mexican Constitution [text, PDF]. The court rejected this argument, finding that the constitution did not specify what constituted a family. The court found that the regulation of marriage licenses was a state function.

In December, Mexico City's legislative assembly [official website, in Spanish] approved the same-sex marriage law. The legislation allows for marriage, adoption, inheritance and other economic and social rights. The provision also seeks to end discrimination based on sexual orientation. The state of Chihuahua is currently the only state in Mexico that recognizes same-sex civil unions [JURIST news archive]. Last month, Argentine President Cristina Fernandez [official website, in Spanish] signed a same-sex marriage bill into law after the bill was approved by the legislature [JURIST reports], making Argentina the first Latin American country to legalize same-sex marriage nationwide. Last week, a US federal judge ruled that the California state ban on same-sex marriage violates the US Constitution [JURIST report]. Same-sex marriage is currently recognized in several US jurisdictions, and nationwide in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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ABA endorses same-sex marriage
Dwyer Arce on August 11, 2010 8:52 AM ET

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[JURIST] The American Bar Association (ABA) [organization website] on Tuesday adopted a resolution [text] calling on state and local governments to legalize same-sex marriage [JURIST news archive]. The resolution was adopted at the ABA annual meeting [executive summary, PDF] held in San Francisco over the past week. The resolution was adopted overwhelmingly [AP report], with only one member voicing opposition to it. It calls for all state, territorial and tribal governments in the US to "eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry." In explaining the legal need to recognize same-sex marriages, the ABA said:
Excluding same-sex couples from the right to marry has the practical impact of denying them and their children a host of rights and responsibilities that exist under both state and federal law. State protections automatically extended to married spouses include the ability to make health care decisions for one's spouse, the right to direct the remains of a deceased spouse and inherit from his or her estate absent a will, the security of being able to provide health insurance for one's spouse, and the peace of mind knowing that both adults' relationships with children born to the couple will be protected. ... In addition, the denial of these important protections harms the hundreds of thousands of children being raised by same-sex couples. The experiences of those states that have created legal relationships such as domestic partnerships that are intended to mirror the attributes of marriage, make plain that these separate and inferior systems perpetuate rather than cure the inequality that results from denying marital recognition to same-sex couples.
In anticipation of the ABA's decision, the Alliance Defense Fund (ADF) and the National Lawyers Association (NLA) [advocacy websites] claimed that the resolution disproved the ABA's claims that it speaks for the US legal profession. Additionally, they called on the ABA to "refrain from taking political positions" [press release]. The organization went on to compare Tuesday's decision to the ABA's 1992 decision to endorse abortion rights, causing a "significant exodus of lawyers leaving the ABA in protest."

The resolution comes a week after a federal judge ruled that Proposition 8 [JURIST news archive], California's ban on same-sex marriage, violates the US Constitution [JURIST report] by undermining both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. The ADF was a defender of the law and called the decision a "disappointing one" [press release], which "gut[s] the core of the American democratic system." The organization has stated that it will appeal the case to the Supreme Court if necessary. Several jurisdictions in the US have legalized same-sex marriage, including the District of Columbia, Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report].




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Louisiana district judge to preside over oil spill lawsuits
Carrie Schimizzi on August 11, 2010 7:39 AM ET

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[JURIST] The US Judicial Panel on Multidistrict Litigation [official website] on Tuesday selected [order, PDF] US district judge Carl Barbier to hear more than 300 lawsuits filed against British Petroleum (BP) [corporate website] in connection with the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. The panel ordered more than 77 actions and 200 additional potentially related actions to be transferred to the US District Court for the Eastern District of Louisiana [official website]. The numerous lawsuits were filed in varying locations including Alabama, Florida, Mississippi, Texas and Louisiana. Counsel for BP previously moved for centralization in the US District Court for the Southern District of Texas [official website], but the panel cited Louisiana as the "most appropriate district" for the litigation due to the close proximity of the oil spill's effects. The judicial panel also addressed the concerns of some parties that a New Orleans location would prevent a level playing field and that a different location would provide for a "neutral judge." In its statement, the panel expressed its "every confidence" that Barbier is prepared to handle the litigation:
When federal judges assume the bench, all take an oath to administer justice in a fair and impartial manner to all parties equally. That oath applies just as much to a multidistrict litigation involving hundreds (or thousands) of actions and scores of parties as it does to a single civil action between one plaintiff and one defendant. Our experience is that transferee judges impartially carry out their duties and make tough decisions time and time again, and that they uniformly do so without engaging in any location-specific favoritism.
In addition, the judicial panel transferred three lawsuits [order, PDF] filed by BP shareholders over stock losses to US district judge Keith Ellison in the Southern District of Texas.

Earlier this week, BP and the US Department of Justice (DOJ) [official website] announced the completion of negotiations over the implementation of a $20 billion fund [JURIST reports] to aid victims of the oil spill. Numerous lawsuits are pending against BP in connection with the spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, Attorney General Eric Holder [official website] announced that the DOJ is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers, including the Clean Water Act and the Oil Pollution Act of 1990 [materials].




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Taliban should face war crimes charges over civilian casualties: AI
Dwyer Arce on August 10, 2010 2:17 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Tuesday called for the Taliban [CFR backgrounder] and other insurgent groups in Afghanistan to be tried for war crimes [press release] for targeting civilians. The statement was released following the 2010 Mid-Year Report on Protection of Civilians in Armed Conflict [text; UN News Centre report] from the UN Assistance Mission in Afghanistan (UNAMA) [official website]. The report found that in the first six months of 2010 there had been 3,268 civilian deaths and injuries, 76 percent of which were attributed to the Taliban and allied groups fighting NATO forces and the government of Afghan President Hamid Karzai [official profile]. This constitutes a significant shift from 2009, where NATO accounted for just under half of all civilian casualties in the country, marking a 95 percent increase in civilian casualties attributed to the Taliban and related groups. The report also found the number of child and women casualties to have risen 55 and 6 percent, respectively, over the same period in 2009. This data prompted AI to call for the investigation and prosecution of the Taliban and other responsible groups for war crimes:
The Taleban and other insurgents are becoming far bolder in their systematic killing of civilians. Targeting of civilians is a war crime, plain and simple. The Afghan people are crying out for justice, and have a right to accountability and compensation. There is no practical justice system in Afghanistan now that can address the lack of accountability. So the Afghan government should ask the International Criminal Court to investigate war crimes and crimes against humanity that may have been committed by all parties to the conflict.
Afghanistan is a party to the Rome Statute [text, PDF], giving the International Criminal Court (ICC) [official website] jurisdiction over war crimes committed on Afghan territory.

Both sides of the conflict have faced criticism over civilian casualties from human rights groups and activists in recent years. In March, Human Rights Watch (HRW) [advocacy website] called on the Afghan government to retract a law granting amnesty [JURIST report] for war crimes and human rights abuses committed by the Taliban and others prior to December 2001. The law contradicted a plan adopted by the Afghan government [JURIST report] in 2005 to investigate war crimes and human rights violations committed while the Taliban controlled the government. Last month, Wikileaks [website] founder Julian Assange [Telegraph profile] said that the Afghan War Diaries [materials], a compilation of 91,000 documents leaked to the organization on the US war effort in Afghanistan, may provide evidence of war crimes [JURIST report] committed by US forces. In May 2009, HRW called on the US government to make "fundamental changes to reduce civilian casualties" [JURIST report] in Afghanistan after attacks last week reportedly left more than 140 civilians dead.




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South Korea police raid Google office over data collection
Daniel Richey on August 10, 2010 1:22 PM ET

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[JURIST] The South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google [corporate website] South Korean headquarters in Seoul on Tuesday morning in connection with accusations that the company has been illegally acquiring user data. Representatives from the SKNPA's Cyber Terror Response Center [official website, in Korean] said that officials suspect Google of collecting personal data from wireless networks using its fleet of Street View vehicles, camera-equipped cars the search engine operator uses to map streets for its Google Maps [website] service. Korean authorities said that they learned months ago that Google has been collecting data from wireless networks and will continue the investigation until they can determine if any of the data collected violates the country's privacy laws. Google has said it will cooperate with the investigation [Bloomberg report].

Multiple investigations are already pending around the world in connection with accusations that Google unlawfully collected private data. Last month, Australian authorities completed an investigation [JURIST report] into the search giant's collection and storage of private data [JURIST news archive] over unsecured wireless networks, determining that the company violated the Australia Privacy Act. In June, the UK Metropolitan Police [official website] initiated an investigation [JURIST report] in response to a complaint filed [JURIST reports] by Privacy International (PI) [advocacy website], which claims that the information gathered in an independent audit [text, PDF] published by Google earlier that month proves that the company's interception of unencrypted data was not inadvertent [JURIST report] and should lead to prosecution. Earlier that week, Connecticut Attorney General Richard Blumenthal [official profile] announced that he will lead a multistate investigation [JURIST report] against Google and requested detailed information from the company on its data harvesting practices. Additionally, Canada launched an investigation [JURIST report] in June to determine whether Google has violated the country's Personal Information Protection and Electronic Documents Act [text, PDF], which applies to private organizations that collect, use or disclose personal information in the course of commercial activities. Belgium, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations.




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Scotland lawmakers call for release of Lockerbie bomber medical records
Dwyer Arce on August 10, 2010 1:09 PM ET

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[JURIST] The opposition Scottish Labour Party [party website] called Tuesday for the publication of all medical evidence related to the release of convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC profile]. The demand comes one year after al Megrahi was released [JURIST report] from prison on compassionate grounds because doctors predicted he only had three months to live. Al Megrahi was then returned to his native Libya, where he is sill living, and experts have suggested that he could continue living for a year or more [Mail Online report]. Despite the publication of a report leading to the decision, the Labour party said that all medical opinions leading to the decision and the names of the doctors who authored them should also be released [BBC report]. Responding to criticism of his decision to release al Megrahi, Scottish Justice Secretary Kenny MacAskill [official website] claimed he acted in good faith when authorizing the release, denying that there was an arrangement [Telegraph report] for al Megrahi to drop his appeal in return for his release. Last month, US lawmakers called for an investigation [JURIST report] into the role that oil company British Petroleum (BP) [corporate website] may have played in al Megrahi's release. The lawmakers are asking that the Senate Judiciary Committee investigate whether BP played a role in lobbying for the release of al Megrahi in exchange for a 2007 contract with Libya allowing the company to drill in the country's coastal waters.

Al Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Al Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. In November 2008, the Scottish High Court of Judiciary [official website] denied al Megrahi's request to be released [JURIST report] on bail during the appeals process. In March 2008, lawyers for al Megrahi were denied access to a "missing document," that they had sought in appealing his conviction [JURIST reports]. The Scottish Criminal Cases Review Commission (SCCRC) [official website] granted an appeal [JURIST report] in the case in June 2007 and referred it the High Court after the commission identified six grounds for a possible "miscarriage of justice" In his trial and conviction. In 2003, Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland, that killed all 259 on board [memorial website] including 180 Americans.




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Jury selection begins in Khadr military trial
Dwyer Arce on August 10, 2010 12:15 PM ET

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[JURIST] The military trial of Canadian Guantanamo Bay [JURIST news archives] detainee Omar Khadr [DOD materials; JURIST news archive] began Tuesday with jury selection, despite international criticism of the proceedings. Khadr pleaded not guilty to charges of murder and terrorism [JURIST reports] Monday for allegedly throwing a grenade that killed one US soldier and injured another when he was 15. Potential jury members, all US military officers, were questioned by prosecutors and defense attorneys during the proceedings. The final jury will consist of at least five members [AP report] during the trial, which is expected to last for several weeks and could result in a life sentence for Khadr. UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy [official profile] criticized [press release] Tuesday's proceedings, arguing the trial would set a dangerous precedent for child soldiers [CFR backgrounder] worldwide:
The statute of the International Criminal Court (ICC) makes it clear that no one under 18 will be tried for war crimes, and prosecutors in other international tribunals have used their discretion not to prosecute children. Since World War II, no child has been prosecuted for a war crime. Child soldiers must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation or restorative justice. Even if Omar Khadr were to be tried in a national jurisdiction, juvenile justice standards are clear; children should not be tried before military tribunals. The Omar Khadr case will set a precedent that may endanger the status of child soldiers all over the world. I urge both [the US and Canadian] governments to come to a mutually acceptable solution on the future of Omar Khadr that would prevent him from being convicted of a war crime that he allegedly committed when he was child.
The trial has also been criticized by Canadian Senator Romeo Dallaire (L-QC) [official website], who has questioned the legitimacy of the proceedings.

US military judge Army Colonel Patrick Parrish ruled Monday that Khadr's confessions are admissible evidence in the trial. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, claimed [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. Prosecutors argued that they did not rely on Khadr's interrogation confessions and that, according to intelligence agents, Khadr spoke freely. Parrish also ruled that video that US forces found weeks after the battle of Khadr helping al Qaeda operatives make and plant bombs in Afghanistan would be admissible. On Friday, the US Supreme Court [official website] refused to block the trial. Last month, the US District Court for the District of Columbia [official website] refused to lift the stay [JURIST report] on his habeas corpus petition pending the conclusion of the trial. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation violates the Canadian Charter of Rights and Freedoms [text].




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Japan PM apologizes for Korea colonization
Dwyer Arce on August 10, 2010 10:41 AM ET

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[JURIST] Japanese Prime Minister Naoto Kan [official website] on Monday apologized to South Korea [statement] for Japan's 20th-century colonization of the Korean peninsula. The statement was timed to coincide with the anniversaries of the 1910 annexation of the peninsula and the 1945 South Korean independence, which both occurred during August. In his statement, Kan emphasized the strength of the two countries' bilateral relations [CFR backgrounder] and the similarity of their societies, stating:
To the tremendous damage and sufferings that this colonial rule caused, I express here once again my feelings of deep remorse and my heartfelt apology. ... Japan and [South Korea] have become the most important and closest neighboring nations ... in [the] twenty-first century, sharing such values as democracy, freedom, and [a] market economy. Our relationship is not confined to our bilateral relations, but rather it is a partnership where we cooperate and exercise leadership for the peace and prosperity of the region and the world by encompassing a broad spectrum of agenda: the peace and stability of this region envisioning, among others, the future establishment of an East Asia community, the growth and development of the world's economy, as well as issues of global scale such as nuclear disarmament, climate change, poverty and peace-building.
Kan also apologized during a phone conversation [CSM report] with South Korean President Lee Myung-bak [official website]. The statement is seen as an effort by the Japanese government to forge closer ties with South Korea. The apology was criticized Tuesday by South Korea's ruling Grand National Party for stopping short of offering compensation [Yonhap report] to the millions of Koreans forced to work as laborers and prostitutes by the Japanese military.

Japan has been accused of committing war crimes in its colonies, and the two countries still suffer from diplomatic conflicts and competition over disputed territory [Xinhua report]. In February, Japanese Foreign Minister Katsuya Okada [official profile] apologized to South Korea [JURIST report] for its colonization of the Korean peninsula. At a meeting in Seoul with South Korean Foreign Minister Yu Myung-Hwan [official profile], Okada said that the Japanese government regrets its history of colonial rule over Korea and the alleged war crimes that resulted. Okada also praised the 1995 Murayama Statement [text], the most notable public apology for Japanese imperialism, in which the Japanese government pledged to promote peace with its Asian neighbors. Okada and Myung-Hwan agreed to work toward a more stabilized relationship [AFP report] between their countries.




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UN SG calls for greater efforts on indigenous rights
Dwyer Arce on August 10, 2010 9:50 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Monday called on governments to work to improve the human rights conditions [statement] of the world's indigenous peoples. The statement, made on the International Day of World's Indigenous People [official website], urged world governments to come into compliance with the UN Declaration on the Rights of Indigenous Peoples [text], which was adopted by the UN [JURIST report] in 2007. The treaty outlines the global human rights of the approximately 370 million indigenous people and bans discrimination against them. Explaining the need for greater attention to the living conditions of the world's indigenous population, Ban stated:
Indigenous peoples have preserved a vast amount of humanity's cultural history, and speak a majority of the world's languages. [They] have inherited and passed on a wealth of knowledge, traditions and artistic forms. ... Indigenous peoples' issues are more prominent on the international agenda than ever before. But indigenous peoples still suffer disproportionate poverty, poor health and racism. Their languages, religions and cultural traditions are often shunned. ... In some countries, indigenous people are six hundred times more likely to contract tuberculosis than the general population. In others, an indigenous child can expect to die twenty years before his or her non-indigenous compatriots. Every day, indigenous communities face issues of violence, brutality and dispossession of their lands. We must increase indigenous peoples' access to vital services including education, health care and employment. We must continue to raise the status of indigenous peoples.
Ban also noted the findings of January's UN Report on the State of the World's Indigenous Peoples [official website], which he said "should alarm us all." The report found that indigenous peoples, who account for five percent of the world population, comprise 15 percent of the world's poor. It also found that indigenous peoples face systemic discrimination and exclusion from political life and are overrepresented among the illiterate and destitute. Ban called on world governments to renew their commitment to the rights of indigenous peoples.

The UN observes the International Day of the World's Indigenous People every August 9 in an effort to "promote the enjoyment of the rights of indigenous people and the full development of their distinct cultures and communities." The UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly in 2007 after 143 member states voted to adopt the treaty and four member states—Australia, Canada, New Zealand and the US—voted against it. The four cited concerns that it conflicted with their countries' own laws, among other contentions. Amnesty International Australia (AIA) [advocacy website] on Monday criticized the Australian government [JURIST report] for not taking greater measures to eliminate racial discrimination against indigenous people, violating its obligations under the Declaration, which was endorsed by the Australian government last year [JURIST report]. AIA pointed to the Northern Territory National Emergency Response Act (NTER) [text, PDF] as the most pressing discriminatory policy, interfering with almost every aspect of indigenous life.




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Guantanamo detainee agrees to plea deal at military tribunal
Dwyer Arce on August 10, 2010 8:51 AM ET

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[JURIST] Sudanese Guantanamo Bay [JURIST news archive] detainee Ibrahim Ahmed Mahmoud al Qosi [DOD materials; JURIST news archive] on Monday reached a plea agreement with the US government setting out the maximum sentence he can receive at his military tribunal [JURIST news archive]. The details of the plea agreement will remain sealed until he is released from prison [Al Arabiya report]. According to al Qosi's lawyers, the government will allow him to serve his sentence at Camp 4, a facility at Guantanamo reserved for the best behaved detainees. Additionally, al Qosi is said to have waived credit for the eight years he has spent in detention. Also on Monday, jury selection in his case began. The jury will be composed of military officers [WP report] who will consider the evidence against al Qosi and determine a sentence for him, but, if the jury sentence exceeds that set out in the plea agreement, it sentence will be set aside. Before the agreement, al Qosi faced possible life imprisonment after pleading guilty [JURIST report] to supporting al Qaeda [GlobalSecurity backgrounder] in their hostilities against the US since 1996, acting as the group's cook and accountant in the 1990s and as a bodyguard for Osama bin Laden [CFR profile] in later years.

Al Qosi's plea marks the fourth time a Guantanamo detainee has been convicted by a military tribunal since the detention center opened in 2002 and the first time a captive has been convicted since the Obama administration ordered the facility shut down [JURIST report] in 2009. The American Civil Liberties Union (ACLU) [advocacy website] recently reiterated its call to end military commissions [press release] and try Guantanamo detainees in civilian courts. Al Qosi has been detained at Guantanamo since he was transferred there from Afghanistan in 2002. In December, a military judge ruled that the US government could partially amend the charges [JURIST report] against al Qosi by changing his jurisdictional basis but could not include four additional years of alleged activities under the charges. In October, military judges granted continuances [JURIST report] for prosecutors in the case against al Qosi. At the time, it was expected that the continuances would make way for a decision on whether to hold the remaining Guantanamo detainee proceedings in civilian or military court.




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Bangladesh bans corporal punishment in schools following court order
Ann Riley on August 10, 2010 8:39 AM ET

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[JURIST] The Bangladeshi Ministry of Education [official website] on Monday banned the use of corporal punishment in all schools across the country. Following a circular order [BD News 24 report] issued by Education Secretary Ataur Rahman, calling the form of punishment "misconduct," teachers found guilty of beating children will now face disciplinary action [BBC report]. The directive follows interim orders [press release] from the Bangladeshi Supreme Court [official website] in July requiring the investigation and prosecution of such corporal punishment and the public instruction to all schools to refrain from utilizing corporal punishment of any kind. The Bangladesh Legal Aid and Services Trust (BLAST) and Ain o Salish Kendra (ASK) [advocacy websites] initially challenged the government's failure to respond to incidents of corporal punishment after a 10-year-old boy committed suicide after being beaten by his teacher. BLAST and ASK argued that the lack government action violated fundamental and international rights under the Constitution, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities [texts].

Corporal punishment is widespread and prevalent in Bangladesh. In 2009, the UNICEF [official website] released a report documenting the frequent physical abuse of children [Reuters report] at home, school and work. The Opinions of Children of Bangladesh on Corporal Punishment [text, PDF] revealed that 91 percent of children faced physical abuse at school and that many teachers continue to use switches, canes and sticks. Bangladesh has previously been scrutinized for other human rights violations. In 2007, the EU monitored and expressed concern over possible human rights violations [JURIST report] in Bangladesh. Earlier that year, Reporters Without Borders [advocacy website] criticized Bangladeshi censorship and violence against journalists, and the US Department of State (DOS) [official website] expressed concerns about due process for people detained under Bangladesh's emergency rules [JURIST report].




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US military judge rules Khadr confessions admissible at trial
Ann Riley on August 10, 2010 7:33 AM ET

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[JURIST] US military judge Army Colonel Patrick Parrish on Monday ruled that confessions by Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] are admissible evidence in his US military commission trial. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, claimed [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. Prosecutors argued that they did not rely on Khadr's interrogation confessions [Reuters report] and that, according to intelligence agents, Khadr spoke freely [BBC report]. Parrish also ruled that video that US forces found weeks after the battle of Khadr helping al Qaeda operatives make and plant bombs in Afghanistan would be admissible. Also Monday, Khadr formally pleaded not guilty to murder and terrorism charges [JURIST report] against him for allegedly throwing a grenade that killed one US soldier and injured another. Khadr's trial, scheduled to begin on Tuesday [JURIST report] at Guantanamo Bay, is the first contested military commission trial under the Obama administration. If Khadr is found guilty, he could face a life sentence.

On Friday, the US Supreme Court [official website] refused to block the military trial of Khadr, issuing a one-line order denying the petition for a stay [JURIST report] with no noted dissents and offering no explanation of the ruling. Jackson filed a petition [JURIST report] last week asking the Supreme Court either to issue a writ of mandamus [Cornell LII backgrounder] forcing the US Court of Appeals for the District of Columbia Circuit [official website] to rule on a similar petition or for the Supreme Court to grant the stay because there was little time before the trial. Last month, the US District Court for the District of Columbia [official website] allowed Khadr to amend [JURIST report] his 2004 habeas corpus petition but refused to lift the stay on the petition pending the conclusion of his military commission. Also in July, Khadr rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].




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Thailand court opens trial against ruling party
Dwyer Arce on August 9, 2010 3:10 PM ET

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[JURIST] The Constitutional Court of Thailand [GlobaLex backgrounder] on Monday conducted the first hearing in the electoral fraud trial of the ruling Democrat Party [party website, in Thai]. The case, brought in June [JURIST report] by the Election Commission of Thailand [official website], could result in the dissolution of the party and the exclusion of its leaders, including current Prime Minister Abhisit Vejjajiva [official website, in Thai; BBC profile], from politics for five years. The commission alleges the party violated [Bangkok Post report] the Political Party Act [LoC backgrounder] by misusing 29 million baht (USD $907,000) of public campaign funds by over-reporting expenses for campaign purchases during the 2005 election. The court heard the testimony of two members of the Department of Special Investigation and Puea Thai Party [party website, in Thai] MP Kiatisak Menasawat at the opening of the trial and is expected to call a total of 15 witnesses. The next hearing in the case is scheduled for August 23, and the court is expected to hand down its decision in October. The Democrat Party is also being investigated [AP report] in relation to unreported corporate donations of 258 million baht (USD $8.1 million).

In April, the Election Commission called for the dissolution of the ruling party for failing to report donations and alleged misuse of those donations. The commission's decision came amid some of the deadliest political clashes Thailand has experienced in nearly two decades, as Thai protesters, known as red shirts [BBC backgrounder; JURIST news archive], called for new elections and Vejjajiva's resignation. Thailand's chief of the army, General Anupong Paojinda, has given his support [Bangkok News report] to the opposition's call for new elections in a hope that dissolution will provide an end to the current standoff between the Abhisit government and the opposition. In 2008, former prime minister Samak Sundaravej [BBC profile] and his cabinet were ousted following a guilty verdict [JURIST report] from the Constitutional Court on the charge that Samak violated the constitution when he accepted payment for his appearance on a television cooking program.




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BP, DOJ complete negotiations on $20 billion oil spill victim fund
Daniel Richey on August 9, 2010 2:49 PM ET

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[JURIST] British Petroleum (BP) [corporate website] and the US Department of Justice (DOJ) [official website] on Monday announced [DOJ press release; BP press release] the completion of negotiations over the implementation of a $20 billion fund [JURIST report] to aid victims of the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. The White House has tapped Washington lawyer and special master for compensation Kenneth Feinberg [WP profile] to manage claims from the fund. BP has appointed two trustees to administer the fund, former US district judge for the Southern District of New York [official website] John Martin and Washington University Law School [academic website] dean Kent Syverud [official profile]. Associate Attorney General Tom Perrelli stressed that, while the deal is an important first step to compensating victims of the spill, much work has yet to be done:
We are pleased that BP made an initial contribution and has taken an important step toward honoring its commitment to the President and the residents and business owners in the Gulf region. We have made clear that the company still needs to ensure that the necessary funds will be available if something happens to the subsidiary that established the trust and we look forward to completion of an appropriate security arrangement in the near future.
At the completion of the deal, BP made a $3 billion initial deposit into the fund, with another $2 billion planned for the fourth fiscal quarter of 2010.

Numerous lawsuits are pending against BP in connection with the Deepwater Horizon spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against the company in a Louisiana state court alleging that the its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, Attorney General Eric Holder [official website] announced that the DOJ is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers, including the Clean Water Act and the Oil Pollution Act of 1990 [materials]. In May, DC-based consumer advocacy organization Food and Water Watch (FWW) [advocacy website] filed suit [JURIST report] in a US district court against the US Department of Interior (DOI) and the Minerals Management Service (MMS) [official websites] for an injunction to halt drilling at BP's Atlantis facility, another Gulf of Mexico site.




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Iran court sentences Baha'i community leaders for espionage
Dwyer Arce on August 9, 2010 1:03 PM ET

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[JURIST] An Iranian court on Sunday sentenced seven Baha'i leaders [case backgrounder] to 20-year prison terms on charges of espionage. The seven were convicted of espionage [AFP report], propaganda activities against the Islamic order, the establishment of an illegal administration and cooperation with Israel. All seven have denied the charges and have appealed the decision. The seven, all members of a national coordination committee for the Baha'i [religious website] community in Iran, were arrested in 2008. Their arrest and subsequent trial prompted international criticism and calls for their release from the US government, UN rights bodies [statements] and governments worldwide. There are 300,000 Baha'i living in Iran, comprising Iran's largest non-Muslim minority. There are an estimated seven million members worldwide. The religion is considered heretical by the Iranian government, and the Baha'i have also faced legal restrictions on their activities in Egypt since the 1960s.

In October, the US State Department [official website] released its annual Report on International Religious Freedom [JURIST report], criticizing the Iranian government's treatment of the Baha'i community. The report found that Baha'i face arbitrary arrest and prolonged detention and have been targeted by negative campaigns in government-run media. The report also noted that, because the Baha'i are not one of the religious groups recognized by the Iranian Constitution [text], they are not free to practice their beliefs and are prohibited from holding any position in the government or military. According to the report, the Baha'i are considered apostates and often face charges of cooperation with Israel because the Baha'i world headquarters are located in Haifa.




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Maldives AG resigns as parliament refuses to seat Supreme Court
Daniel Richey on August 9, 2010 11:44 AM ET

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[JURIST] Maldavian Attorney General Husnu Al-Suood [official website] resigned [press release] Sunday after the People's Maljis [official website] failed to approve legislation to make the fledgling democracy's interim Supreme Court [official website] permanent. In his resignation letter, Al-Suood accused the opposition-controlled legislature of having "deliberately not attended to its duties," making it impossible for the Attorney General's Office to function. Maldavian President Mohamed Nasheed [official profile] responded Sunday by issuing a decree creating a substitute interim body to fulfill the basic administrative duties of the Supreme Court. Press Secretary Mohamed Zuhair chastised the legislative opposition for its failure to permanently institute the court:
The Majlis failed to get its work done on time. This left the President with two options: allow the country to have no Supreme Court at all, or issue a decree so at least the administrative functions of the Supreme Court can continue. The President chose the latter option. We hope Majlis members will hurry up and pass the required legislation so the court can function as envisaged under the Constitution.
On Monday, the nation's high Civil Court ruled [Miadhu report] that the interim Supreme Court cannot be disbanded before the establishment of a permanent Supreme Court and called on the Maldives National Defense Force [official website] to turn over the courthouse keys.

The Indian Ocean archipelago nation has continued to descend into legislative crisis since embracing Western-style democracy and ratifying a new constitution [JURIST report] in late 2008. Nasheed defeated longtime political opponent Maumoon Abdul Gayoom, who had jailed him numerous times during his 30-year rule. However, Nasheed's ruling Maldavian Democratic Party holds only 32 of 77 seats in the parliament, while the opposition Dhivehi Raithunge Party [party websites] holds 36. Opposition legislators have stonewalled the ruling party's entire legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. The gridlock became so disruptive in June that Nasheed's entire cabinet resigned [BBC report]. Replacement appointments have been made, but have yet to be ratified by the parliament. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and a more powerful legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption. The new constitution was drafted in response to international criticism [AI report, PDF] of 2003 government actions against protesters of prison conditions in the country.




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Australia racial discrimination violates international obligations: report
Dwyer Arce on August 9, 2010 10:31 AM ET

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[JURIST] Amnesty International Australia (AIA) [advocacy website] on Monday criticized the Australian government [report, PDF; press release] for not taking greater measures to eliminate racial discrimination, violating its obligations under international law. The charges were made in a report to the UN Committee on the Elimination of Racial Discrimination [official website], the body that oversees the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination [text]. According to AIA, ongoing policies and initiatives by the Australian government violate the Convention and the UN Declaration on the Rights of Indigenous Peoples [text], which was endorsed by Australia last year [JURIST report]. AIA noted that the government had still not implemented legal reforms creating rights against discrimination. The rights organization cited several provisions of the Australian Constitution [text], which it claims violate Australian obligations under international law, including those allowing for Australian states to disenfranchise entire racial groups and empowering the national parliament to legislate along racial lines. According to AIA, Australian policies toward asylum seekers and refugees also violate its treaty commitments by discriminating based on national origin and allowing for the indefinite detention of undocumented and stateless persons. AIA also pointed to the continuing discrimination against indigenous peoples in its report, finding the Northern Territory National Emergency Response Act (NTER) [text, PDF] to be the most pressing discriminatory policy, interfering with almost every aspect of indigenous life. AIA explained:
[T]he Government ... must reinstate full legal protections against racial discrimination. It must also put an end to any intervention measure that does not comply with the Convention. Refusing to process visa applications from asylum seekers fleeing oppression in war-torn Afghanistan is completely unacceptable. The discrimination within these procedures must be eliminated. It's up to all of our political leaders to make sure their policies comply with the Convention on the Elimination of Racial Discrimination.
AIA also found several positive steps taken in recent years by the Australian government. These include an official apology to indigenous victims of the Stolen Generation [TIME backgrounder] and initiatives to increase indigenous health and life expectancy.

In June, the Australian government reinstated its Racial Discrimination Act (RDA) [JURIST report] in the Northern Territory. The discrimination laws were suspended by the NTER in 2007 in order to allow governmental authorities to regulate how welfare money was spent by the indigenous people of the country. Under NTER, regulators were able to intervene in indigenous areas by setting aside a portion of the welfare benefits received for rent, food and medical care in order to prevent the designated money from being spent on alcohol. The reinstatement of the RDA allows the regulation of welfare payments to remain in place, but the regulations will be applied to both indigenous and non-indigenous citizens living in the Northern Territory. The discriminatory nature of the NTER has been widely criticized. In March, UN special rapporteur James Anaya condemned the law [press release], calling it problematic from a human rights point of view.




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Israel complied with international law in flotilla raid: PM
Dwyer Arce on August 9, 2010 8:45 AM ET

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[JURIST] Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] testified Monday that Israel did not violate international law [transcript] during the May flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. His testimony was the first heard before the Turkel Commission, a civilian investigatory commission created by the Israeli government [JURIST report] in June. During his testimony, Netanyahu expressed confidence that the commission would find Israeli actions to be in compliance with international law and explained the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas [GlobalSecurity backgrounder]. Netanyahu continued to accuse Hamas of "at least four war crimes: inciting to genocide; systematically and intentionally firing on civilians; using civilians as human shields; and preventing visits by the Red Cross to kidnapped IDF soldier, Gilad Shalit." Netanyahu urged the commission to consider Hamas' war crimes in its investigation:
These are not merely past crimes. They are being committed today as well, and I hope this Commission will deem it appropriate to emphasize these points in its report. I ask this only because other commissions, which claimed that the question of human rights and international law were so dear to their hearts, for some reason almost entirely ignored these central issues. I am convinced that a credible investigation like yours - independent, transparent, impartial and responsible—will certainly not ignore them.
Additionally, he stated that the humanitarian crisis of Gaza was a fiction perpetuated by Hamas. A crisis had been avoided by the policies of his government: "There was no hunger in Gaza and there was no lack of medicines or other essential items," Netanyahu explained.

In June, Netanyahu appointed former Israeli Supreme Court justice Yakov Turkel to head an internal probe, approved by the Israeli cabinet that month. The Israeli government has agreed to cooperate with the international commission appointed by UN Secretary-General Ban Ki-moon [official website] last week. The panel will consist of four members, including former New Zealand premier Geoffrey Palmer [official profile], former Colombian president Alvaro Uribe [BBC profile] and two other members, one appointed by Israel and the other by Turkey. Ban described the panel as "unprecedented," and stated his hope that the "agreement will impact positively on the relationship between Turkey and Israel as well as the overall situation in the Middle East." Earlier this month, an Israeli military probe found insufficient intelligence and planning [JURIST report] in the raid in a report, but also concluded that no punishments were necessary. Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza in May. The raid left numerous wounded and resulted in the deaths of nine pro-Palestine activists—eight Turks and one American.




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South Africa journalists 'appalled' by proposed media regulation
Zach Zagger on August 8, 2010 2:24 PM ET

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[JURIST] South African journalists on Sunday expressed disdain [statement] for proposed media regulations that they claim will inhibit freedom of expression and media freedom. A declaration by South African Press Council [official website] chairman Raymond Louw criticizing the regulation was published in every major South African newspaper. Louw said he was "appalled" that the African National Congress (ANC) and the South African Communist Party (SACP) [party websites] are proposing a statutory media appeals tribunal. In regard to the regulation, he said:
It has nothing to do with promoting press freedom but everything to do with the way the press reports on the conduct of governance including the conduct of cabinet ministers and other senior officials of the party. They don't want the public to be told of their poor governance, corruption by "tenderpreneurs'' and lavish life-styles. They want the press to report the African National Congress's version of what is happening.
The appeals tribunal would adjudicate complaints [AFP report] on media stories and hold journalists legally accountable. The South African parliament is already considering a Protection of Information Bill, which journalists fear will hamper investigative reporting. Recently, there have been many reports on lavish spending on luxury vehicles by ANC leader and South African President Jacob Zuma [BBC profile; JURIST news archive].

The ANC won [JURIST report] control of the South African government in April 2009 but failed to win the two-thirds majority needed to change or amend the country's constitution and pass legislation on its own. This is not the first sign of tension between the ANC and the South African media. In 2005, the Johannesburg High Court banned the release [JURIST report] of a newspaper article revealing a corruption scandal involving the nation's ruling ANC, requiring South Africa's leading independent newspaper, the Mail and Guardian [media website], to prevent the distribution of its entire 45,000 issue run.




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Turkish court annuls arrest warrants for military coup plot suspects
Erin Bock on August 8, 2010 1:48 PM ET

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[JURIST] A Turkish court on Friday annulled the arrest warrants issued for 102 Turkish military officers over an alleged 2003 coup plot. The officers, including 25 generals and admirals, were arrested last month [JURIST report] for allegedly participating in a coup plot referred to as "Operation Sledgehammer" [Al Jazeera backgrounder] after the Justice and Democracy Party (AKP) [party website], which has Islamic roots, came into power in 2002. The group planned to bomb mosques, increase tensions with Greece and cause political unrest to create interest in the public in overthrowing the party, which has unseated four Turkish governments since 1960 and promotes secularism. A total of 196 suspects were initially charged [JURIST report], and the trial for those remaining will begin on December 16 [Al Jazeera report]. The Turkish government issued the arrest warrants last month after authorities discovered the plot and brought those involved into custody, including Cetin Dogan, a four-star general who allegedly was in charge of the plot. Dogan was hospitalized for heart problems the day following his arrest.

Mass arrests of those involved in the coup plot began in February [JURIST report]. The Turkish courts are also conducting a trial [JURIST report] of 33 retired and active naval officers accused of a coup attempt in connection with a group called Ergenekon [BBC backgrounder; JURIST news archive]. The accused were indicted in March [JURIST report] for allegedly planning to assassinate prominent members of Turkey's Christian and Jewish minority groups and blame Islamic terrorists for the deaths in order to weaken the AKP. If convicted, the Ergenekon defendants could face sentences ranging between seven-and-a-half and 15 years in prison. Trials against the Ergenekon group began two years ago [JURIST report] and nearly 200 people have been charged in connection with the alleged plot.




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Kagan sworn in as Supreme Court justice
Erin Bock on August 8, 2010 12:40 PM ET

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[JURIST] Elena Kagan [official profile; JURIST news archive] was sworn in [video] as the 112th justice of the US Supreme Court [official website] Saturday. Kagan, the former US Solicitor General and dean of Harvard Law School [official websites], took part in two ceremonies [AFP report]—a private one for her friends and family, and a public ceremony. Chief Justice John Roberts [official profile] administered the oath [press release], in which Kagan swore to "administer justice without respect to persons, and do equal right to the poor and to the rich," while placing her hand on a Bible owned by Justice Stephen Breyer [NPR report]. Kagan is replacing Justice John Paul Stevens [Oyez profile], who announced his retirement [JURIST report] in April. President Barack Obama [official profile] did not attend the ceremony, but held a separate reception [WH blog] on Friday where he compared Kagan to former justice Thurgood Marshall [Oyez profile], citing her intellect and "path-breaking career." Kagan, who served as clerk to the former justice, stressed the importance of her appointment to the Court:
[T]his appointment is not just an honor. Much more importantly, it is an obligation -- an obligation to protect and preserve the rule of law in this country; an obligation to uphold the rights and liberties afforded by our remarkable Constitution; and an obligation to provide what the inscription on the Supreme Court building promises: equal justice under the law.
Kagan will join the other Supreme Court justices on the bench for the court's fall term after her formal investiture ceremony scheduled for October 1. Kagan's appointment is not expected to change the balance of the current court, which has taken on a more conservative ideology in recent years. Kagan will join associate justices Sonia Sotomayor and Ruth Bader Ginsburg [Oyez profiles] as the third female member of the Roberts court and the fourth female justice in the court's history.

The US Senate [official website] confirmed Kagan to her position [JURIST report] on the court by a 63-37 vote [roll call vote] on Thursday. The vote fell largely along party lines, with five Republicans voting in her favor and one Democrat voting against her. Republican senator Scott Brown (R-MA) [official website] cited Kagan's lack of judicial experience as his reason for opposing her confirmation, while other senators like Jeff Sessions (R-AL) and Nebraska senator Ben Nelson (D-NE) [official websites] called her an activist and disagreed with her opposition during her time as dean at Harvard Law School to allow military recruiters access to students. Last month, the Senate Judiciary Committee voted 13-6 [JURIST report] to send Kagan's nomination to the full Senate for consideration after delaying its vote [JURIST report] at Sessions' request due to his concerns over Kagan's positions on legislation during her time working for the Clinton administration. Obama nominated Kagan [JURIST report] for the position this past May.




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Supreme Court refuses to block Khadr military trial
Zach Zagger on August 7, 2010 4:01 PM ET

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[JURIST] The US Supreme Court [official website] on Friday refused to block the military trial of Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive]. The Supreme Court issued a one-line order denying the Khadr's petition for a stay. The order had no noted dissents and offered no explanation of the ruling. The trial is scheduled to begin August 10 at the US military base at Guantanamo Bay. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, filed a petition [JURIST report] on Monday asking the Supreme Court either to issue a writ of mandamus [Cornell LII backgrounder] forcing the US Court of Appeals for the District of Columbia Circuit [official website] to rule on a similar petition or for the Supreme Court to grant the stay because there was little time before the trial.

Last month, the US District Court for the District of Columbia [official website] allowed Khadr to amend [JURIST report] his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission. Also in July, Khadr rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injured another. If he is found guilty, he could face a life sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].




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California governor, AG seek immediate resumption of same-sex marriages
Christian Ehret on August 7, 2010 3:56 PM ET

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[JURIST] California Governor Arnold Schwarzenegger, Attorney General Jerry Brown and others filed motions [AG brief, text] Friday in the US District Court for the Northern District of California [official website] opposing a request to stay the court's recent decision [opinion, PDF; JURIST report] enjoining the enforcement of Proposition 8, the state's ban on same-sex marriage. The requested stay would disallow gay marriage in California until the decision is appealed to the US Court of Appeals for the Ninth Circuit and even possibly the US Supreme Court. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, now leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the controversial law. The motion submitted by Brown stated that:
Defendant-Intervenors' argument [in support of] their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. ... [W]hile there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional
The Plaintiffs' brief in opposition [PDF] to the request for a stay argued that plaintiffs and other gay and lesbian Californians will "suffer irreparable harm if Proposition 8's irrational deprivation of their constitutional rights is prolonged."

The Wednesday ruling found that Proposition 8 violated the 14th Amendment's guarantees to Equal Protection and Due Process. The case began in January and culminated with closing arguments [JURIST reports] in June.




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Federal appeals court rules against warrantless GPS tracking
Christian Ehret on August 7, 2010 2:14 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Friday that prolonged use of global positioning systems (GPS) to monitor suspects' vehicles violates the Fourth Amendment [text] protection against unreasonable searches and seizures. The appellate court found that there exists a reasonable expectation of privacy in the "whole of a person's movements over the course of a month" because the combination of all such movements is not actually or constructively exposed to the public. Although the Supreme Court's ruling in United States v. Knotts [opinion text] allows the use of tracking devices to follow vehicles from one place to another based on a lower expectation of privacy on public roads, the appeals court distinguished the instant case by finding that too much personal information is revealed over longer periods of time. The court discussed the expectations of society, stating:
Society recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have — short perhaps of his spouse.
The decision adds to a split among appellate courts on the issue, although the court noted that decisions to the contrary "were not alert to the distinction ... between short-term and prolonged surveillance" in the relevant precedent.

In June, the US Supreme Court unanimously held [opinion, PDF; JURIST report] that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employer's search of private text messages does not violate the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose. In February, the US Court of Appeals for the Ninth Circuit ruled [opinion, PDF; JURIST report] that strip searching all incoming inmates does not violate the Fourth Amendment because it is necessary in order to prevent illegal substances from entering prisons.




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Rights group urges South Carolina to stop segregating HIV-positive prisoners
Zach Zagger on August 7, 2010 12:48 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday urged the South Carolina Department of Corrections (SCDC) [official website] to stop segregating HIV-positive inmates [press release]. HRW claims the policy promotes stigma and discrimination because HIV-positive prisoners are housed in a separate maximum security facility, regardless of their sentence, and forced to serve longer sentences because they are excluded from many work programs and services that enable other inmates to leave early. On Tuesday, the US Department of Justice (DOJ) [official website] sent a letter [text, PDF] to the SCDC revealing that the DOJ Civil Rights Division is investigating the SCDC after numerous complaints about the segregation policy. The DOJ alleges that segregating HIV-inmates is a violation of Title II of the Americans with Disabilities Act (ADA) [text] because HIV-positive prisoners are held in separate housing and excluded from many of the programs, services and activities provided by the SCDC. The DOJ claims HIV-positive inmates also receive inadequate medical and mental health care. The letter says the matter will be resolved if several changes are made by the SCDC, including integrating the HIV-positive prisoners and protecting their privacy by not disclosing their disease.

Only two states, Alabama [JURIST report] and South Carolina, still have a policy of discriminating HIV-positive prisoners. In April, HRW and the American Civil Liberties Union (ACLU) [advocacy website] jointly produced a report [text, PDF] concluding that the prisoners face fundamental discrimination, which amounts to "cruel, inhuman and degrading treatment of prisoners." In March, Mississippi ended [AP report] its segregation program, after extending [ACLU press release] educational and vocational training to HIV-positive inmates in 2001. In 1990, the ACLU, on behalf of HIV-positive prisoners, sued to force Mississippi to provide proper medical care. HRW has also accused the federal Department of Homeland Security [official website] of providing inadequate medical care [JURIST report] to HIV-positive immigration detainees.




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New York City subway plot suspect pleads not guilty
Daniel Richey on August 6, 2010 4:28 PM ET

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[JURIST] Suspected terrorist Adis Medunjanin [JURIST news archive] pleaded not guilty Friday in the US District Court for the Eastern District of New York [official website] to charges of participating in a plot to detonate a bomb inside the New York City Subway. In January, Medunjanin pleaded not guilty [JURIST report] to charges that he received terrorist training conspired with Najibullah Zazi [JURIST news archive] last year to hatch the subway bomb plot. Medunjanin, a naturalized American citizen, was arrested [FBI release] earlier this year in connection with an ongoing investigation of Zazi, who allegedly traveled with Medunjanin [Reuters report] and one other individual to Pakistan in 2008 to receive al Qaeda [CFR backgrounder; JURIST news archive] training, according to prosecutors. He was indicted on additional charges in July.

Mendunjanin was indicted [NYT report] in January. His lawyer has accused authorities of holding and questioning his client without access to his family or legal counsel for 36 hours. Last month, the Department of Justice (DOJ) [official website] announced charges [JURIST report; press release] against five members of al Qaeda in connection with the plot, broadening the scope of the case to include high-ranking members of the terrorist organization such as Adnan El Shukrijumah, a leader of al Qaeda's external operations program, who is charged with organizing the New York plot for Zazi and his alleged conspirators. Zazi is a native of Afghanistan who was arrested [BBC report] by FBI agents in Colorado. He was originally charged with making false statements to the FBI. In September, he was indicted [indictment PDF; JURIST report] and originally pleaded not guilty [JURIST report] to charges of conspiracy to use weapons of mass destruction. In February, he changed his plea to guilty to three criminal charges of conspiring to use weapons of mass destruction in the US and to commit murder in a foreign country, as well as providing material support to al Qaeda.




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Florida AG responds to motion to dismiss health care lawsuit
Dwyer Arce on August 6, 2010 2:35 PM ET

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[JURIST] Florida Attorney General Bill McCollum [official website] on Friday filed a response [text, PDF; press release] urging a federal court not to dismiss a lawsuit challenging the constitutionality of the newly enacted health care reform law [HR 3590 text; JURIST news archive]. The lawsuit was filed in March and has been joined by 19 other states and the National Federation of Independent Businesses (NFIB) [JURIST reports]. It challenges the individual mandate provision of the law, which requires every American to buy health insurance. The response comes after a motion to dismiss [text, PDF] was filed by the Obama administration in June and asserts that the challenge is ripe for adjudication. Even though the individual mandate does not take effect until 2014, McCollum argues that because states would have to begin expending resources to ensure compliance with the mandate, the lawsuit should be allowed to proceed. Additionally, he argues that the states have standing to sue over the mandate because it undermines state police power reserved to them by the Tenth Amendment [Cornell LII backgrounder]. Due to the "manifestly unconstitutional" nature of the individual mandate, and its inability to be severed from the rest of the legislation, the health care reform bill in its entirety should be struck down as unconstitutional, the response states. Further, it went on to detail the reasons why the individual mandate is unconstitutional, explaining:
No enumerated power of Congress permits this assertion of top-down centralized economic power; nor can the Necessary and Proper Clause expand congressional power to support the mandate. Congress's commerce power extends to regulation of activities having a substantial relation to interstate commerce, but does not allow it to compel inactive individuals to enter a marketplace against their will. Likewise, Congress's power to tax does not authorize it to compel persons to buy specific insurance products. By exerting such sweeping authority over Americans' individual decisions, Congress has seized powers denied it under the Tenth Amendment, in violation of the Constitution's federalist structure and individual rights under the Fifth and Ninth Amendments.
The US District Court for the Northern District of Florida [official website] will hold a hearing on the motion to dismiss September 14.

The response cited Monday's decision refusing to dismiss another lawsuit [JURIST report] against the individual mandate filed by Virginia in the US District Court for the Eastern District of Virginia [official website]. The court found that Virginia had standing to bring the case because the federal health care law directly contradicted a state law [JURIST report] purporting to prevent the enforcement of a federal mandate, which the state has an interest in defending. The court also held that the lawsuit was "ripe for adjudication" because the effects of the law will be felt in the near future. The Obama administration urged for dismissal in both cases on similar grounds, arguing that even if the states had standing, the law is a constitutional exercise of the Commerce Clause [Cornell LII backgrounder].




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Ex-Khmer Rouge leader hires new counsel ahead of appeal
Daniel Richey on August 6, 2010 2:17 PM ET

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[JURIST] Former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive], also known as "Duch," has hired Cambodian lawyer Kang Ritheary to replace his previous lawyer, according to documents [text, PDF] released by the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] Friday. Kaing fired [press release; JURIST report] his international co-counsel, Maitre Roux, in early July after sending a letter to ECCC President Nil Nonn, saying that he had "lost confidence" in the French lawyer. Ritheary joins Kar Savuth, Kaing's original co-counsel, also a Cambodian. Last month, the ECCC convicted Kaing [JURIST report] of crimes against humanity and of violating the 1949 Geneva Conventions, sentencing him to 35 years in prison. He plans to appeal [JURIST report].

Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families, mitigating conduct that earned him a reduced sentence from the 40 years prosecutors originally sought. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provision detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution.




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Failure of European Muslims to integrate fuels terror recruitment: report
Dwyer Arce on August 6, 2010 11:57 AM ET

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[JURIST] The US State Department [official website] warned Thursday that the alienation of European Muslim communities through various laws and policies could fuel recruitment for terror groups. The Country Reports on Terrorism 2009 [text], an annual report the State Department is required to publish under federal law [22 USC § 2656f text], is meant to provide a full accounting of terrorist activities in certain countries for the previous year. It cites the significant Muslim populations of several European countries, comprising both recent immigrants and second- or third-generation who face ongoing problems integrating into European society, as providing "fertile recruitment ground" for extremists. The report states that al Qaeda [GlobalSecurity backgrounder] remains the largest threat to the US. The organization has continued to spread through connections with other like-minded groups in Yemen and Somalia [JURIST news archives], where an absence of law and order have provided these groups with room to operate. Terrorist organizations are also gaining significant assistance from state sponsors, the largest of which is Iran [JURIST news archive], which has provided significant funding and operational support to Hamas and Hezbollah [GlobalSecurity backgrounders]. The State Department also pointed to the rise in US citizens involved in both domestic and international terrorist acts as cause for concern.

In July, the Council of Europe's European Commission Against Racism and Intolerance (ECRI) [official website] reported that violence and rhetoric targeting Muslims has risen [JURIST report] in Europe during 2009, following the recent economic crisis. The ERCI specifically pointed to the recent trend in some parts of Europe toward banning the wearing of the burqa [JURIST news archive], noting that the legislation is targeted towards Muslims, and called on countries to encourage religious diversity and acceptance. In order to combat the rising incidents of racism, ERCI is urging the 29 Council of Europe members that have not yet ratified Protocol 12 to the European Convention on Human Rights [materials], which prohibits racial discrimination, to do so. They are also advising countries to enforce existing laws against racism and to enact new laws in order to "fill the legal gaps that still exist."




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CIA removed terror suspects from Guantanamo to avoid due process: AP
Daniel Richey on August 6, 2010 11:24 AM ET

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[JURIST] The Central Intelligence Agency (CIA) [official website] transferred several high-profile prisoners to Guantanamo Bay to await trial in 2003, only to transfer them back into the CIA's network of secret prisons [JURIST news archives] so they would not be entitled to lawyers and access to US courts, the Associated Press reported [text] Friday. Among the suspects reportedly on the September 2003 flight were prominent al Qaeda [CFR backgrounder] members Ramzi Binalshibh and Mustafa al-Hawsawi, who aided in the planning of the 9/11 attacks, and Abd al-Nashiri, who planned the 2000 USS Cole bombing [JURIST news archives]. A commercial jetliner operated by one of the CIA's several airline front companies removed al-Hawsawi from the "Salt Pit" in Kabul, Afghanistan, transferred alleged 9/11 conspirator Khalid Sheikh Mohammed [JURIST news archive] to "Britelite" in Bucharest, Romania, and picked up the others at a facility in Rabat, Morocco, before landing in Guantanamo Bay. The prisoners were transferred to await trial by a military tribunal, but US officials subsequently became concerned that the Supreme Court's impending ruling in Rasul v. Bush [opinion, PDF; JURIST report] would require the government to grant access to lawyers and US courts to foreign-born terror suspects. In March 2004, the CIA transferred the prisoners back into various overseas prisons, allowing the agency to interrogate them without legal protections for two more years until then-president George W. Bush ordered the prisoners back to Guantanamo under pressure from media scrutiny of the extraordinary rendition program [JURIST news archive].

Also Friday, Warsaw-based human rights group Helsinki Foundation for Human Rights (HFHR) [advocacy website, in Polish] released documents [text, PDF; part 2, text, PDF] from the Polish Border Guard Office [official website, in Polish] detailing arrival, departure and passenger information for several flights by CIA front companies into and out of cities in Poland. HFHR reports [press release, PDF] that it secured records for seven flights in total spanning a period from December 2002 to September 2003, when the AP says the five-stop flight to Guantanamo Bay took place:

[B]etween 5 December 2002 and 22 September 2003 seven planes which are commonly associated with CIA front companies landed at Szymany airport. Five of them came to Poland with passengers, but at the time of departure only crew was present on board. The last plane noted flew to Szymany empty, and left Poland with five people on board
That entry, dated September 22, 2003, shows a flight arriving with no passengers in Szymany, reportedly site of the CIA prison where Mohammad had been held, according to the AP. It then departed with five passengers for Romania, home of "Britelite," the prison to which the AP reports Mohammad was transferred around that time.

The US has come under fire for its use of CIA-operated secret detention facilities. In December, a Lithuanian parliamentary committee confirmed that the CIA had established two secret prisons for al Qaeda suspects, prompting a dispute that led to the resignation [JURIST reports] of the country's foreign minister. On his third day in office last year, US President Barack Obama ordered the closure [JURIST report] of all CIA secret prisons. The European Parliament voted [JURIST report] in February 2007 to approve a report that condemned member states for cooperating with the CIA in operating secret prisons. In January 2007, the UK admitted knowledge of the CIA prison network, and then-president George W. Bush publicly acknowledged [JURIST reports] in September 2006 that these types of facilities existed. In June 2006, the Council of Europe released [JURIST report] a report [text, PDF] that 14 European countries collaborated with the CIA by taking an active or passive role in a "global spider's web" of secret prisons and rendition flights. The existence of CIA prisons in Europe was first reported in November 2005.




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US Senate fails to approve minority farmer settlement
Dwyer Arce on August 6, 2010 10:33 AM ET

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[JURIST] The US Senate [official website] on Thursday failed to authorize a settlement between the US government and minority farmers for alleged discrimination. The $4.6 billion settlement would be distributed between several hundred thousand minority farmers. Among that group are Native American farmers claiming that the US Department of the Interior (DOI) [official website] failed to pay them royalties on natural resources for the last century. The rest of the group receiving the settlement consists of African Americans who missed the filing deadline in the 1999 class action lawsuit Pigford v. Glickman [BFAA backgrounder] that resulted in more than $1 billion being paid to farmers. The settlement, approved by the House of Representatives [official website] in July, failed in the Senate after members of the Republican party objected to a unanimous consent motion [CNN report] proposed by Democratic members. Republican members cited concerns over the federal deficit in their decision. It is the seventh time that the Senate has failed to approve the settlement, which the Obama administration is under court order to resolve [AP report].

In February, the USDA and Department of Justice (DOJ) [official website] announced a $1.25 billion settlement [JURIST report] for African American farmers claiming they suffered racial discrimination in USDA loan programs. The settlement arises from the Pigford case, which was reopened to those who missed the filing deadline after the passage of the Food, Conservation, and Energy Act of 2008 [HR 6124 materials; JURIST report]. Under the terms of the new settlement, individual farmers may demonstrate their entitlement to relief through a non-judicial claims process. In 1997, black farmers alleged in the Pigford case that they were being denied USDA farm loans or forced to wait longer for loan approval than were non-minority farmers.




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Mexico high court upholds Mexico City same-sex marriage law
Dwyer Arce on August 6, 2010 8:46 AM ET

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[JURIST] The Supreme Court of Mexico [official website, in Spanish] on Thursday ruled [judgment, PDF; in Spanish] 8-2 that a Mexico City law allowing same-sex marriage [JURIST news archive] is constitutional. The law, passed last year [JURIST report], was challenged by Mexican Attorney General Arturo Chavez [official website, in Spanish], who had argued that allowing same-sex marriages violates the guarantee of familial integrity under the Mexican Constitution [text, PDF]. It was also challenged by the state governments of Jalisco and Baja California, which argued that the same-sex marriage law had a negative impact on them. The court rejected their arguments, finding that the constitution did not specify what constituted a family. The court found that the regulation of marriage licenses was a state function. The court will rule next week on the issue of adoption [El Universal report, in Spanish] by same-sex couples, which was allowed under the Mexico City law, and whether the marriages must be recognized nationwide.

In December, Mexico City's legislative assembly [official website, in Spanish] approved the same-sex marriage law. The legislation allows for marriage, adoption, inheritance and other economic and social rights. The provisions also seeks to end discrimination based on sexual orientation. The state of Chihuahua is currently the only state in Mexico that recognizes same-sex civil unions [JURIST news archive]. Last month, Argentine President Cristina Fernandez [official website, in Spanish] signed a same-sex marriage bill into law after the bill was approved by the legislature [JURIST reports], making Argentina the first Latin American country to legalize same-sex marriage nationwide. On Wednesday, a US federal judge ruled that the California state ban on same-sex marriage violated the US Constitution [JURIST report]. Same-sex marriage is also recognized in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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DOJ charges 14 with aiding Somalia-based terror organization al-Shabaab
Ann Riley on August 6, 2010 7:38 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday announced that 14 individuals have been charged [press release] with providing money, personnel and services to the Somalia-based Islamic terrorism organization al-Shabaab [CFR backgrounder]. Prosecutors in the Southern District of Alabama, the Southern District of California and the District of Minnesota [official websites] unsealed four separate indictments accusing the 14 individuals of terrorism violations. Also Thursday, two of the defendants, Amina Farah Ali and Hawo Mohamed Hassan—both naturalized US citizens—were arrested. Announcing the arrests and charges, Attorney General Eric Holder [official profile] stated [text]:
[T]hese arrests and charges should serve as an unmistakable warning to others considering joining or supporting terrorist groups like al-Shabaab: if you choose this route you can expect to find yourself in a U.S. jail cell or a casualty on the battlefield in Somalia. As demonstrated by the charges unsealed today, we are seeing an increasing number of individuals - including U.S. citizens - who have become captivated by extremist ideology and have taken steps to carry out terrorist objectives, either at home or abroad. It's a disturbing trend that we have been intensely investigating in recent years and will continue to investigate and root out. But we must also work to prevent this type of radicalization from ever taking hold.
The unsealed September 2009 three-count indictment [text, PDF] charges US citizen Omar Hammami with providing "material support and resources ... services and personnel, including himself" to the foreign terror association al-Shabaab in violation of 18 USC §§ 2332a(b), 2339A, and 2339B [texts]. US citizen Jehad Mostafa was separately charged for providing material support to al-Shabaab in the unsealed October 2009 indictment [text, PDF]. Currently, Hammami and Mostafa, who both could potentially face 15 years in prison for each count, are not in custody and are believed to be in Somalia. Ali and Hassan were charged in an unsealed July 2010 indictment [text, PDF] with conspiracy to provide material support to al-Shabaab between September 17, 2008 and July 19, 2010. Communicating with people in Somalia, Ali and Hassan allegedly solicited funds under false pretenses to support al-Shabaab. Prosecutors in the District of Minnesota also unsealed a July 2010 third superseding indictment [text, PDF] that charges 10 individuals, including three US citizens, with conspiracy to provide material and financial support to al-Shabaab and conspiracy to kill and injure individuals abroad. The 10 defendants, of which seven have previously charged by an indictment or criminal complaint, are not in custody and are believed to be overseas. To date, in connection with the al-Shabaab investigation, 19 defendants have been charged in Minnesota, with nine arrests and five guilty pleas.

Thursday's indictments highlight a growing concern of US citizens' involvement with extremist groups and homegrown terrorists. In June, a Pakistani anti-terrorism court sentenced five Americans [JURIST report] from the DC-area to 10 years in prison for plotting attacks on Pakistan. That same week, Pakistani-born US citizen Faisal Shahzad [BBC profile] pleaded guilty to 10 counts of terrorism and weapons charges [JURIST reports] relating to May's attempted car bombing in New York City's Times Square. In April, Human Rights Watch (HRW) [advocacy website] criticized [JURIST report] the violent and repressive conditions in southern Somalia that have been implemented by al-Shabaab.




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UN SG renews call for nuclear disarmament
Daniel Richey on August 5, 2010 5:12 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official website] called [press release] for the elimination of all nuclear weapons Thursday in a speech [text] delivered during a visit to the Japanese city of Nagasaki. In his speech, Ban emphasized the importance of eliminating existing nuclear weapons and using political pressure to create stronger nonproliferation treaties:
In the General Assembly and at the review conferences of the Nuclear Non-Proliferation Treaty, Japan has long supported concrete, practical measures aimed at achieving a world free of nuclear weapons. My visit here has strengthened my conviction that these weapons must be outlawed, either by a nuclear weapons convention or by a framework of separate mutually-reinforcing instruments. I urge all nations to support my five-point action plan for nuclear disarmament and to agree to negotiate a nuclear weapons convention at the earliest possible date.

Ban unveiled his plan for nuclear disarmament [press release] in August 2009. It involves a series of mutually-binding treaties, backed by a "credible system of verification" and compulsory disclosure of disarmament-related reports to the public.

The UN Security Council [official website] voted [JURIST report] in June to impose a fourth round of sanctions on Iran [press release] for its failure to disband the nation's uranium enrichment program. In April, US President Barack Obama and Russian President Dmitry Medvedvev [official profiles] signed [JURIST report] the New START Treaty [text, PDF; BBC backgrounder]. Under the terms of the treaty and its protocol [text, PDF], both countries would be allowed only 1,550 strategic warheads worldwide, a decrease from the 2,200 currently permitted. The treaty would also re-establish mechanisms to allow each party to inspect the other's arsenal. Last may, Ban and other world leaders condemned [JURIST report; statement text] a North Korea [JURIST news archive] nuclear weapon test, a violation of the 2006 UN Security Council ban on nuclear missile tests [Resolution 1718 text; JURIST report].




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Senate votes to confirm Kagan to Supreme Court
Dwyer Arce on August 5, 2010 3:55 PM ET

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[JURIST] The US Senate on Thursday voted 63-37 [roll call vote] to confirm Solicitor General Elena Kagan [official website; JURIST news archive] to the Supreme Court [official website]. The vote fell largely along party lines, with only one Democrat voting against her confirmation, and five Republicans voting in favor. Shortly before the vote, Senator Scott Brown (R-MA) announced that he could not support Kagan's confirmation [press release] because of her lack of judicial experience, despite finding her "brilliant." Kagan is expected to be sworn in on Saturday. The Senate heard final statements on the confirmation [JURIST report] on Tuesday. During the debate, Senate Republicans chose not to pursue a filibuster [Washington Post report] given the likelihood of its failure. Senator Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee [official website], questioned Kagan's "discipline" [video] and called her an "activist, liberal, progressive, politically-minded judge who will not be happy to simply decide cases, but will seek to advance her causes." Senator Lindsey Graham (R-SC) explained his decision to support Kagan [video], arguing that the Advise and Consent Clause of the US Constitution [text] is not meant to subject nominees to the discretion of the Congress, but only to check against the appointment of judges who are grossly lacking in character or qualifications or who were inappropriately nominated.

The Senate Judiciary Committee voted 13-6 to send the nomination to the full Senate last month after the committee delayed its vote [JURIST reports] at Sessions's request. In asking for the delay, Sessions cited concerns over Kagan's positions on legislation during the her time working in the Clinton administration and called her answers to questions during the hearing "less than candid." Kagan's confirmation hearings concluded in June [JURIST report]. President Barack Obama nominated Kagan [JURIST report] in May to replace former justice John Paul Stevens, who announced his retirement [JURIST report] in April.




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Chicago man charged with attempting to aid al Qaeda
Daniel Richey on August 5, 2010 3:53 PM ET

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[JURIST] Federal authorities arrested [FBI release] a Chicago man Tuesday night on suspicion that he planned to travel to Somalia and train with terrorist groups there in order to become a suicide bomber. Acording to a complaint [text, PDF] filed Tuesday in the U.S. District Court for the Northern District of Illinois [official website], Shaker Masri, an American citizen born in Alabama and raised abroad, was only hours from boarding a flight when he was arrested by Federal Bureau of Investigation (FBI) Joint Terrorism Task Force [official website] agents. In the last month, according to an FBI informant, Masri began to lay out a specific plan to travel to Afghanistan and Somalia [CFR backgrounders] to join jihadist fighters with al Qaeda [GlobalSecurity backgrounder; JURIST news archive] and its Somali affiliate al Shabaab [CFR backgrounder; JURIST news archive]. Masri was charged with two counts of attempting to provide material aid to a terrorist organization. He could receive up to 15 years in prison for each charge if found guilty, and is being held without bail.

The Department of Justice (DOJ) filed charges [JURIST report] last month in another case of domestic terrorism, against five members of al Qaeda allegedly involved in a plot to detonate a bomb in the New York City subway. Najibullah Zazi, the Colorado man at the center of that plot, pleaded guilty [JURIST report] to the conspiracy in February. In June, Pakistani-born US citizen Faisal Shahzad [BBC profile] pleaded guilty [JURIST report; indictment, PDF] to 10 counts of terrorism and weapons charges for attempting to detonate a car bomb in New York City's Times Square. In May, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism. In March, Senators John McCain (R-AZ) and Joseph Lieberman (I-CT) [official websites] proposed a law [JURIST report] that would require terror suspects, including US citizens, to be stripped of their Miranda rights and to face military interrogation and trial. The proposed legislation has been controversial [JURIST op-ed], with critics claiming its impact "would be a fundamental miscarriage of justice."




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Federal judge allows Iraqis' suit against military contractors to proceed
Dwyer Arce on August 5, 2010 2:34 PM ET

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[JURIST] A judge for the US District Court for the District of Maryland [official website] has denied a motion to dismiss [opinion, PDF] a lawsuit filed by a group of former Iraqi detainees against US military contractors. The lawsuit, Al-Quraishi v. Nakhla [case materials], filed in June 2008 [JURIST report], alleges that L-3 Services, Inc. [corporate website] violated US and international law by directing and participating in abuses at Abu Ghraib [JURIST news archive] and other Iraqi prisons. The defendants in the case had moved for dismissal in November 2008, claiming immunity under the laws of war and sovereign immunity. Additionally, they claimed that the Alien Torts Claims Act [28 USC § 1350 text], under which the plaintiffs were suing, was not applicable because they did not violate the law of nations. The defendants also argued that they were immune from the claims made under state law because of government contractor immunity and because Iraqi law should be applied. Judge Peter Messitte rejected these claims, explaining:
Defendants' actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense[.] ... The Court declines to dismiss the Alien Tort Statute claims since, in the Court's judgment, Plaintiffs' claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs' state law claims, the Court finds that they are governed by Iraqi law. ... [T]he Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law.
The court held that the case must continue to discovery to answer the issues that it was unable to resolve at this point in the litigation.

In October 2008, lawyers for private US military contractor CACI International, Inc. [corporate website], which was named as a defendant along with L-3 in the original complaint, filed a motion to dismiss the charges [JURIST report] against the company based on a claim of immunity. This motion was granted in January 2009. The lawsuit was filed in 2008, alleging that L-3 and CACI subjected them to torture, cruel and inhuman treatment, committed war crimes, assault and battery, sexual assault and battery and infliction of emotional distress, in addition to conspiracy to commit those acts.




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UN SG calls for 'sense of urgency' in forming Iraq government
Drew Singer on August 5, 2010 1:32 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Wednesday called [report, PDF] for Iraq's political leaders to work together "with a higher sense of urgency" to form a new government, warning that further delays could create more instability. Since holding elections [JURIST report] five months ago, there have been disagreements within the country as to who has the authority to build the new government [UN release], Moon told the UN Security Council Wednesday morning. Moon outlined the possible consequences of a government not being formed quickly:
I am concerned that continued delays in the government formation process are contributing to a growing sense of uncertainty in the country. Not only does this risk undermining confidence in the political process, but elements opposed to Iraq's democratic transition may try to exploit the situation. The number of recent security incidents throughout Iraq, mainly in the north of the country and in Baghdad, including attacks against newly elected members of parliament and religious pilgrims, are of particular concern.
Once this process is completed, Moon said the government can turn its attention to pressing domestic issues including Arab-Kurdish disputed areas revenue-sharing, the adoption of legislation related to hydrocarbons, relations among the federal and regional governments, the constitutional review process and the strengthening of institutions of governance and the rule of law.

Iraq has faced several obstacles in solidifying the nation's newly-created democratic government, which has been riddled with tension between Shiite Muslims and the Sunni minority. In June, the UN urged the Iraqi government to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text; JURIST report]. Iraq remains one of 45 member-countries that have yet to ratify the treaty. Also in June, the Iraqi Supreme Court ratified the final results [JURIST report] of the country's March 7 parliamentary elections, officially confirming a narrow victory for the secular Iraqiya alliance, led by Iyad Allawi [Al Jazeera profile]. The victory gave Iraqiya a slim two-seat lead over the Shiite State of Law [party website] coalition of incumbent Prime Minister Nouri al-Maliki [BBC profile]. Allawi hopes Iraqiya's victory will be a turning point for bipartisan participation among the religious sects, but his goal of unification may be thwarted, as Maliki's bloc has already announced an alliance with the Shia Iraqi National Alliance, which polled third, to form the largest grouping in parliament.




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Rights groups to continue suit against terror suspect defense licensing
Dwyer Arce on August 5, 2010 11:58 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on Wednesday announced that they would pursue a legal challenge [press release] to the Specially Designated Global Terrorist (SDGT) licensing scheme, despite being issued a license to represent Anwar al-Awlaqi [NYT profile]. Al-Awlaqi is a US citizen who is suspected of being a member of al Qaeda [GlobalSecurity backgrounder] in Yemen and was labeled a SDGT last month. The SDGT designation is issued by the Treasury Department Office of Foreign Assets Control (OFAC) [official website] under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. In announcing the continuance of the lawsuit despite the license, the rights groups expressed appreciation for OFAC's prompt response, but explained:
OFAC's regulations are unconstitutional because they require lawyers who are providing uncompensated legal representation to seek the government's permission before challenging the constitutionality of the government's conduct. Notably, OFAC has indicated that the license issued to us today can be revoked at any time. We will pursue our claim that OFAC's attorney-licensing regulations are unconstitutional and should be invalidated.
OFAC Director Adam Szubin [official profile] said Tuesday that his office would be willing to issue a license [JURIST report] to the rights groups, noting that it is the policy of the OFAC to facilitate the provision of pro bono legal services [Politico report] to those sanctioned by the body.

The ACLU and the CCR filed a lawsuit earlier this week [JURIST report] challenging the constitutionality of the licensing scheme after OFAC failed to respond to the organizations' request for a license in al-Awlaqi's case. The rights groups were retained by al-Awlaqi's father in June to provide pro bono legal assistance in challenging the decision of the Obama administration to approve al-Awlaqi for targeted killing in January. The groups allege that the legal assistance ban issued by the Treasury Department exceeds its statutory authority and violates the First and Fifth amendments [Cornell LII backgrounders] to the US Constitution [text]. The groups argue that it violates their First Amendment rights because it interferes with their "right to represent clients in litigation consistent with their organizational missions," and violates the Fifth Amendment because it prevents US citizens from "obtaining legal representation of their interests in US courts." The ACLU described the licensing policy [press release] as an "alarming denial of rights in any one case endangers the rights of all Americans. Attorneys shouldn't have to ask the government for permission in order to challenge the constitutionality of the government's conduct."




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Opponents of Kenya constitution concede in referendum
Daniel Richey on August 5, 2010 10:51 AM ET

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[JURIST] Opponents of a new Kenya constitution [text, PDF] on Thursday peacefully conceded to those in favor of the change, after early results from a national referendum strongly favored [IIEC release] the constitution. Voting on the constitution took place Wednesday amid concerns [Standard op-ed] that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST report] in 2007. Kenya's new constitution includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and an end to the presidential appointment of judges. Additionally, members of parliament receiving cabinet positions will be required to relinquish their legislative seats. Full results for the election are expected [Standard report] to be published by the end of the week.

The creation of a new constitution was part of a power-sharing agreement [JURIST report] agreed to in 2009 between President Mwai Kibaki [official profile] and opposition leader Prime Minister Raila Odinga [official website] that brought to an end the civil unrest that followed the contested election. Election officials have sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.




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Advocacy group files suit against NYC over Cordoba House Islamic center
Dwyer Arce on August 5, 2010 10:37 AM ET

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[JURIST] The American Center for Law and Justice (ACLJ) [advocacy website] on Wednesday filed a lawsuit [petition, PDF; press release] against the New York City Landmarks Preservation Commission (LPC) [official website], seeking to overturn its decision to allow the Cordoba House [project website] project to proceed. The Cordoba House, a planned Islamic cultural center and mosque to be located two blocks from the site of the 9/11 attacks [JURIST news archive], has been criticized [NYT backgrounder] for its proximity to the former location of the World Trade Center. The lawsuit, filed in the New York State Supreme Court [official website], the state trial court, alleges that the LPC violated the New York City Charter [text, PDF] and Administrative Code [text] in refusing to designate the structure currently at the site as a landmark. In explaining the lawsuit, the petition stated:
The building stands as an iconic symbol to an uninterrupted linkage of the rise of American capitalism with our current quest to preserve our freedom and democracy. The building, therefore, should stand as part of the commemorative and educational experience of our shared political, cultural and historic heritage. The land use process of New York City now threatens to do what the terrorists failed to accomplish and destroy a building that has been under consideration for landmark status for twenty years.
In his response [press release] to the LPC descision, Corboba House Chairman Imam Feisal Abdul Rauf said that he hoped the planned center would "be a home for all people who are yearning for understanding and healing, peace, collaboration, and interdependence." The first hearing in the case is expected in October.

Muslim communities in the US have faced increasing legal obstacles in recent years, often due to alleged connections to terrorism. In June 2009, the American Civil Liberties Union (ACLU) [advocacy website] issued a report [JURIST report] finding that US anti-terrorism laws are hindering Muslim charities and violating the constitutional rights of practicing Muslims. The report alleged that current US laws and policies affect Muslims' right to practice their religion through charitable giving, violating constitutional freedoms and fundamental human rights. The ACLU also argued that the policies impeded the right of US Muslims to practice their religion by participating in Zakat, violating their First Amendment [Cornell LII backgrounder] rights.




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Exiled Egypt rights activist returns despite charges
Dwyer Arce on August 5, 2010 9:21 AM ET

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[JURIST] Egyptian dissident Saad Eddin Ibrahim [professional profile] on Wednesday returned to Egypt after three years of exile, despite nine outstanding criminal complaints against him. Ibrahim, founder of the Ibn Khaldoun Centre for Development Studies [academic website], has been a prominent human rights activist and outspoken critic of Egyptian President Hosni Mubarak [NYT profile]. Ibrahim returned for the two-week visit after Egyptian prosecutors assured Ibrahim's lawyers that his arrest was not sought [AP report] by the government. The outstanding complaints include charges that he caused the US Congress to reduce its financial aid to the Egyptian government and that he helped fellow constitutional reformist and former head of the International Atomic Energy Agency (IAEA) [official website] Mohamed ElBaradei [Al Jazeera profile] to communicate with the US government. Ibrahim originally left Egypt to escape prosecution, taking up residence in Qatar [Al Jazeera report].

In May 2009, an Egyptian court overturned Ibrahim's conviction [JURIST report] on charges related to defaming Egypt, finding that the charges were without merit. A dual US and Egyptian citizen, he was accused of defaming Egypt by criticizing its human rights practices and politics, left the country, and was tried and convicted in absentia. The decision overturns a two-year jail sentence [JURIST report] imposed against Ibrahim. Last year, the US State Department [official website] criticized Ibrahim's prosecution [JURIST report] and advocated the protection of civil and political rights. The charges against Ibrahim have been filed by private citizens, who may file lawsuits against individuals who make statements that harm society under Egyptian law.




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FDA report: Medical device oversight too lax
Drew Singer on August 5, 2010 9:11 AM ET

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[JURIST] Vague language and inconsistent interpretations of policy have hindered the Food and Drug Administration's (FDA) [website] ability to effectively evaluate and approve medical devices, according to a new FDA report [text, PDF] released Wednesday. A committee from the FDA's Center for Devices and Radiological Health (CDRH) [website], which regulates medical devices sold in the US, conducted the report to address concerns over whether the current 510(k) program, which oversees the approval of devices similar to those already approved, achieves its goals of "making safe and effective devices available to the public while fostering innovation." The committee recommended that language be improved to require producers of medical devices to submit more safety information to receive approval and be able to more easily revoke approval for products that prove to be unsafe or ineffective. The committee found that the FDA's unclear expectations of would-be medical devices are resulting in lax standards and avoidable complications:
With regard to informed decision making, the Working Group found that it is challenging for review staff to obtain, in an efficient and predictable manner, sufficient device information to make well-supported decisions. To obtain such information without creating unnecessary delays and burden, CDRH must provide submitters with as much up-front clarity as feasible about its evidentiary expectations.The Working Group therefore recommends that CDRH take steps to foster the submission of high-quality 510(k) device information, in part by better clarifying its expectations for 510(k) content.
CDRH Director Jeffrey Shuren [official profile] said that his agency is ready to make the necessary improvements [press release] in order to "support device innovation while assuring patients receive safe and effective devices." CDRH has opened another public docket to receive additional comments on the report, which it will review before proposing any changes.

The CDRH established the staff committee last year. Since then, it has been reviewing input from public meetings, open dockets, data analyses, and input from CDRH staff to make the evaluation. Section 510(k) of the Food, Drug and Cosmetic Act [text] requires device manufacturers to notify FDA of their intent to market a medical device at least 90 days in advance, so the FDA can inspect and classify it.




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BP facing $10 billion class action lawsuit over chemical leak
Erin Bock on August 5, 2010 7:54 AM ET

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[JURIST] Oil company British Petroleum (BP) [corporate website] was sued Tuesday in a $10 billion class action lawsuit [complaint, PDF] over a toxic chemical leak that lasted for 40 days at its refinery in Texas City, TX. The complaint was filed by Texas attorney Anthony Buzbee [firm website] in the United States District Court in the Southern District of Texas [official website] on behalf of more than 2,000 plaintiffs made up of refinery employees and local residents. The suit alleges that BP knowingly allowed over 500,000 pounds of toxic gases, including 17,000 pounds of benzene [CDC fact sheet], a carcinogen, to escape from a malfunctioning hydrogen compressor from April 6, 2010 until it was repaired on May 16, 2010 and did not notify Texas City officials of the leak until it was repaired. In addition to the leak, the suit cites 13 incidents from 2002-2009 at the refinery where toxic gases were released into the environment as well as several fires and explosions that killed more than 20 workers and injured more than 1,000 people. The document criticizes BP's safety record and recalls recent investigations and incidents across the country, including the Deepwater Horizon oil spill [BBC backgrounder, JURIST news archive]. The plaintiffs are suing the oil company for negligence and private nuisance as well as assault and battery, alleging that BP's conduct was committed purposefully or with the knowledge that the plaintiffs would be harmed by the company's actions. The plaintiffs are also seeking an injunction to prevent BP from destroying or altering any evidence that they possess regarding the leak.

Last month, Louisiana residents filed a lawsuit [JURIST report] against BP in a Louisiana state court alleging that the company's negligent actions led to the Deepwater Horizon oil spill and that it was negligent in its handling of the cleanup. In June, two lawsuits [JURIST report] were filed against the oil company alleging that BP committed a series of criminal acts to deceive the public regarding its ability to safely drill for oil and contain oil in the event of a spill and that the company engaged in fraudulent business practices related to its claims payment process. Also in June, US Attorney General Eric Holder [official website] announced that the Department of Justice [official website] would investigate whether BP violated any civil or criminal statutes [JURIST report], resulting in the oil spill.




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Federal judge rules Proposition 8 unconstitutional
Dwyer Arce on August 5, 2010 6:02 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Wednesday ruled [opinion, PDF] that California's ban on same-sex marriage [JURIST news archive] violates the US Constitution [text]. Judge Vaughn Walker held that the ban, known as Proposition 8 [text; JURIST news archive], violated both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment. He also emphasized that the fact that the law was passed by referendum was "irrelevant, as 'fundamental rights may not be submitted to [a] vote[.]'" In finding that the ban on same-sex marriage violated due process, Walker held that same-sex marriage was required as part of the fundamental right to marriage affirmed by the Supreme Court in Loving v. Virginia [text]. He said that by impairing this fundamental right, the state must demonstrate that the law survives strict scrutiny by being narrowly tailored to serve a compelling state interest and that the state had failed to do this. Additionally, the court found that the state's domestic partnership scheme did not satisfy the plaintiffs' right to marriage because it was specifically created to exclude same-sex couples from the "culturally superior" institution of marriage. In addressing equal protection, the court found that discrimination based on sexual orientation should be subject to strict scrutiny, but it was unnecessary here because Proposition 8 failed to satisfy even rational basis review. Citing the Supreme Court case of Romer v. Evans [text], the court held that "moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a women is inherently better than a relationship between two men or two women, ... is not a proper basis on which to legislate." The court explained:
Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
Following the decision, Walker stayed the ruling until Friday [order, PDF], when he will decide whether to stay the ruling pending appeal. The Alliance Defense Fund [advocacy website], a party defending the law, called the decision [press release] a "disappointing one" which "gut[s] the core of the American democratic system." The organization has stated that it will appeal the case to the Supreme Court if necessary.

In June, the court heard closing arguments in the case [JURIST report], Perry v. Schwarzenegger [case materials]. During closing arguments, the attorneys for the plaintiffs argued that the state ban on same-sex marriage was unconstitutional because it denied same-sex couples a fundamental constitutional right based solely on their sexual orientation. The attorneys argued: "[Marriage] is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could ... be withdrawn[.]" In the closing arguments in defense of Proposition 8, its proponents stressed the importance of the institution of marriage to society as a means to "responsible procreation," arguing that the suggestion that the ban was motivated by an animus toward homosexuals was a "slur on 7 million Californians who supported Proposition 8." Several jurisdictions in the US have legalized same-sex marriage, including the District of Columbia, Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report].




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Intel settles anticompetitive conduct suit with FTC
Daniel Richey on August 4, 2010 3:43 PM ET

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[JURIST] The Federal Trade Commission (FTC) [official website] settled [press release; decision, PDF] its lawsuit [case materials] against Intel [corporate website] on Wednesday, with the industry-leading microchip maker agreeing to a set of conditions designed to facilitate fairer competition from competitors such as Advanced Micro Devices (AMD) and Nvidia [corporate websites]. The FTC originally filed suit alleging violations of Section 5 of the Federal Trade Commission Act [text, PDF], which punishes a broad scope of anticompetitive actions. Intel was accused [complaint] of engaging in a number of anticompetitive practices, including employing retalitory measures against hardware partners who purchased properties from competing chip makers and using its large market presence to perpetuate a monopoly over the central processing unit (CPU) market for its x86 CPU platform. FTC chairman Joe Leibowitz praised the settlement as producing a swifter and farther-reaching effect on the consumer chip market than seeing the case through litigation likely would have:
By accepting this settlement, we open the door to competition today and address Intel's anticompetitive conduct in a way that may not have been available in a final judgment years from now. Everyone, including Intel, gets a greater degree of certainty about the rules of the road going forward, which allows all the companies in this dynamic industry to move ahead and build better, more innovative products.

The terms of the agreement encompass Intel's activities in the CPU, graphics processor (GPU) and proprietary chipset markets. In addition to constraining Intel from using its market stature to coerce its partners' other business deals, the agreement also forces the company to restructure its intellectual property agreements with several hardware manufacturers to allow them to move more freely in the market, and to disclose to programmers that its developer-issued CPU programming software may not permit them to utilize performance-enhancing features of competitors' CPUs. Intel senior vice president and general counsel Doug Melamed emphasized that the company has admitted no wrongdoing [press release] in the settlement and said it allows Intel to "put an end to the expense and distraction of the FTC litigation."

The government originally filed suit [JURIST report] against Intel in December 2009. The settlement follows a similar suit [JURIST report] filed in November 2009 by the New York Attorney General [official website], alleging that the microprocessor manufacturer engaged in illegal conduct to further its dominance in the marketplace. Attorney General Andrew Cuomo claims that many of the company's agreements were deliberately aimed at disadvantaging AMD, Intel's primary competitor in the CPU market. Also in November of last year, Intel agreed to settle [JURIST report] all of its outstanding legal issues with AMD with a $1.25 billion payout.




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Lawyer in Iran stoning case seeks asylum in Turkey
Daniel Richey on August 4, 2010 2:46 PM ET

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[JURIST] An officer for the United Nations Office of the High Commissioner for Refugees [official website] said Wednesday said that lawyer Mohammad Mostafei, who is defending a woman sentenced to death in Iran, is seeking asylum in Turkey after fleeing Iran following alleged harassment [AI release] by Iranian officials. Mostafei is currently being held [Radikal report, in Turkish] by Turkey for illegally entering the country. Mostafei was representing Sakineh Mohammadi-Ashtiani, a woman sentenced to death by stoning after being found guilty of adultery based on what she claimed to be a coerced confession. Mohammadi-Ashtiani's sentence prompted international calls for a reduction of her sentence [HRW release]. Iran has temporarily suspended Ashtiani's stoning sentence, but has signaled that it will reject an offer by Brazilian President Luiz Inacio Lula de Silva [official profile] to grant Mohammadi-Ashtiani political asylum [NYT report].

Iran's human rights record continues to draw a significant criticism. In December 2009, an Amnesty International [advocacy website] report [text, PDF; JURIST report] called the actions of government forces during the civil unrest that followed the controversial 2009 presidential election some of the worst human rights abuses in the last 20 years [AI release] The Iranian government announced [J