JURIST - Paper Chase: Wednesday, September 22, 2010

[JURIST] Kenyan businessman Joseph Gathungu filed a lawsuit Wednesday challenging the constitutionality of the International Criminal Court (ICC) [official website] investigation into the violence following the 2007 Kenyan presidential election [JURIST news archive]. The suit, which was filed in the High Court [GlobaLex backgrounder] in Mombasa, argues that the ICC investigation is illegal under the constitution adopted last month [JURIST report]. Gathungu alleges that the investigation violates the letter and spirit [Daily Nation report] of the constitution, usurps Kenyan sovereignty and that the ICC is not a court that has been given competency under the constitution, making Kenya's ratification of the Rome Statute [text] illegal. The case is scheduled to be heard [KBC report] before Justice Jackton Ojwang on October 27. ICC chief prosecutor Luis Moreno-Ocampo [official profile] on Tuesday announced plans to present two cases [JURIST report] against as many as six individuals who "bear the greatest responsibility" for the violence following the elections. In March, the ICC's pre-trial chamber granted [press release] the chief prosecutor authority to launch the investigation into crimes against humanity committed during the post-election period. The announcement of Moreno-Ocampo's intent to prosecute those who planned and executed the post-election violence comes just days after Kenya's Justice Minister Mutula Kilonzo was heavily criticized for suggesting [Daily Nation reports] that with the passage of its new constitution, Kenya can better handle the prosecution of those responsible than the ICC.

In June, UN High Commissioner for Human Rights Navi Pillay [official website] called on Kenya to establish a special tribunal [JURIST report] to investigate post-election crimes. Pillay called the investigation into the deadly violence by the ICC a "major development." She warned, however, that the ICC's role would be limited to a handful of high-profile cases, which is why the need for a more wide-reaching investigation remains. The allegations of fraud [JURIST report] following the 2007 elections led to violence that caused the deaths of more than 1,000 people and displacement of 500,000 others, and remains a concern in the international community. The ICC initiated a formal investigation into the violence after Kenya failed to conduct [JURIST report] its own investigation.

[JURIST] Polish prosecutors announced Wednesday that they will open an investigation into the alleged mistreatment of accused USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri [NYT profile] at a secret CIA prison [JURIST news archive] in Poland. The investigation is in response to the request [JURIST report] filed Tuesday by human rights group Open Society Justice Initiative (OSJI) [advocacy website] and al-Nashiri's lawyers. The request asks prosecutors to scrutinize al-Nashiri's detention and treatment in their investigation [JURIST report] into the allegations of a CIA-operated secret prison in the country and to prosecute those responsible for the acts on Polish soil. Earlier this month, an ex-CIA agent confirmed [Spiegel report] that the agency tortured al-Nashiri in 2002 at a secret prison in Poland. OSJI stated that the filing represents the first attempt [press release] by an extraordinary rendition [JURIST news archive] victim to pursue a legal remedy within the Polish court system. Al-Nashiri remains a detainee at Guantanamo Bay [JURIST news archive], despite an announcement last month by the Obama administration that charges against him are not pending [JURIST report] or being considered. The Pentagon formally dropped charges [JURIST report] against al-Nashiri in February 2009, effectively ending his prosecution under the Military Commissions Act of 2006 [text, PDF].

The commencement of the investigation comes one week after former Polish prime minister Leszek Miller denied any knowledge [JURIST report] of a secret CIA prison in Poland and indicated that he will not discuss allegations of torture until the Polish government's investigation is complete. Allegations against Poland came in a June 2007 report [text; JURIST report] to the Council of Europe [official website] by Swiss Senator Dick Marty. The report concluded that numerous European governments had cooperated with the CIA program. In February 2007, the European Parliament condemned more than a dozen European states [JURIST report] for their roles in the program. Several nations have been accused of obstructing European probes into the secret prison allegations, including Poland [JURIST report], which allegedly housed the largest CIA detention facility in Europe [JURIST report].

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] heard arguments Tuesday in a case challenging the constitutionality of the False Claims Act [text], which allows citizen "whistle-blowers" to sue federal contractors for committing fraud against the government. American Civil Liberties Union (ACLU) [advocacy website] Senior National Staff Counsel Christopher Hansen appeared before the court and argued that the False Claims Act, which calls for court secrecy in fraud cases against the US government, violates the First Amendment protection of free speech, court transparency and separation of government powers. The ACLU, together with the Government Accountability Project (GAP) and OMB Watch [advocacy websites], filed the complaint [text, PDF] last year against the US Attorney General [official website]. The district court granted the government's motion to dismiss in August 2009, and the ACLU appealed the case [brief, PDF; reply brief, PDF]. The advocacy groups support open use of the court systems, while the government argues that the act encourages citizens to anonymously report cases of fraud [Bloomberg report] without fear of backlash.

The False Claims Act has recently received attention in the country's highest court. In March, the US Supreme Court [official website] ruled [JURIST report] 7-2 in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson [Cornell LII backgrounder; JURIST report] that whistle-blowers cannot bring suit under the False Claims Act to recover misspent government funds if the information used in the lawsuits came from state or local agencies' reports or audits. The suit arose out of public record documents that detailed a failure to obtain bids for the clean-up and reconstruction of storm-damaged portions of North Carolina. The ruling could potentially bar thousands of lawsuits by whistle-blowers. However, Congress recently changed the language of the statute [SCOTUSblog report] as part of the health care reform bill [HR 3590 materials] signed into law [JURIST report] in March. It is unclear whether the new wording will affect the case on remand.

[JURIST] The American Civil Liberties Union of Pennsylvania (ACLU-PA) and the Center for Constitutional Rights (CCR) [advocacy websites] on Monday filed a federal lawsuit [press release] against the city of Pittsburgh, Police Chief Nathan Harper and more than 15 police officers on behalf of 25 people arrested during the September 2009 Group of 20 (G-20) Summit [official website; JURIST news archive]. The complaint [text, PDF], filed in the US District Court for the Western District of Pennsylvania [official website], alleges that police officers violated protesters' First Amendment rights of assembly and Fourth Amendment [text] protections against false arrest when conducting a mass arrest using excessive force during a September 25 peaceful demonstration and falsely charging those attempting to obey police orders with failure to disperse and disorderly conduct. ACLU-PA Legal Director Witold Walczak said:

Police declarations that peaceful anti-government demonstrations are illegal and arrest of participants in the assembly are a hallmark of totalitarian regimes, a practice the U.S. rightfully decries when it happens in Iran or Russia. Unfortunately, the same practice occurred in this country during last year's G-20 Summit in Pittsburgh, and now occurs regularly at demonstrations involving national security events, like political conventions and international trade meetings.

The criminal charges against all 25 plaintiffs, 13 of which are University of Pittsburgh and Carnegie Mellon University [academic websites] students, were eventually withdrawn or dismissed. Last year, Allegheny County District Attorney Stephen Zappala Jr. [official website] indicated that some of the University of Pittsburgh students arrested during the G-20 protests [JURIST report] may have been used as pawns [JURIST report] by protesters and those looking to cause damage, when announcing he would drop the charges against four students. It is believed that more than 190 people were arrested during the protests.

Pittsburgh has been greatly criticized for its handling of the G-20 protesters. In December, the ACLU-PA and the CCR extended and continued a lawsuit [JURIST report] against the City of Pittsburgh for allegedly violating the rights of two protest groups during the G-20. According to the amended complaint [text, PDF], Pittsburgh police officers repeatedly violated the First, Fourth, and Fourteenth Amendment [text] rights of Seeds of Peace and Three Rivers Climate Convergence (3RCC) [advocacy websites]. The ACLU-PA and CCR originally filed the lawsuit [JURIST report] in September 2009. According to the ACLU-PA, police deployed throughout the city in a manner that prevented lawful demonstrations [JURIST report], suppressed free speech and failed to prevent criminal activity. The National Lawyers Guild (NLG) [advocacy website] also questioned the methods used by police during protests in the Lawrenceville and Oakland [JURIST reports] sections of Pittsburgh and noted that individual officers lacked visible identification, frustrating the work of NLG and ACLU legal observers.