November 2010 Archives


Gaza rights situation not improving despite Israel easing blockade: report
Zach Zagger on November 30, 2010 4:19 PM ET

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[JURIST] Six months after Israel announced that it was easing the blockade of the Gaza Strip [BBC backgrounder], there is little sign of economic improvement for the struggling territory, according to a report published Tuesday by 25 human rights groups including Amnesty International [advocacy website]. The report, entitled "Dashed Hopes" [text, PDF] says that, though there has been some increase the amount of food stuffs allowed to enter the Gaza Strip, there is still a lack of raw materials for factories and other necessary supplies being let into the territory. The report says this is destroying the Gaza Strip's weak economy and keeping most of its people dependent on foreign aid. According to the report, 39 percent of the residents are unemployed and 80 percent of the population is dependent on foreign aid because they cannot afford necessary goods. The groups allege that the blockade is in violation of international law and that Israel is violating its legal duty as an occupying nation to ensure the welfare of the residents. The Israel Coordinator of Activities in the Territories responded that the accusations by the rights groups were biased and distorted [Jerusalem Post report] and meant to mislead the public. Israel said it is committed to carrying out the easing of the blockade and wants to ensure that the raw materials it allows into the territory cannot be used for terrorist or militaristic activities.

The Gaza Strip blockade brought international attention back on the Israeli-Palestinian conflict after a May 31 raid by the Israeli military of a Turkish ship bound for the strip left nine dead. Under international pressure to lift the blockade, Israeli Prime Minister Benjamin Netanyahu [official profile] in June announced [JURIST report] that the Security Cabinet agreed to ease the nation's land blockade of the Gaza Strip. Also in June, the International Committee of the Red Cross (ICRC) [official website] called for an end [JURIST report] to the blockade, labeling it a violation of international humanitarian law under Article 33 of the Geneva Conventions [text; ICRC backgrounder]. Israel has so far refused an international inquiry [JURIST report] into the flotilla attack. The UN Human Rights Council [official website] condemned [JURIST report] Israel's raid on the ships and initiated an independent investigation into possible violations of international law. The Turkish ship on which the violence occurred was one of six organized [Guardian backgrounder] by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave.




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Supreme Court hears California prison overcrowding case
Jaclyn Belczyk on November 30, 2010 3:22 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Schwarzenegger v. Plata [oral arguments transcript, PDF; JURIST report] on an order to reduce the California prison population [JURIST news archive]. In August 2009, a special panel of federal judges ordered [opinion, PDF; JURIST report] California to reduce its prison population by about 46,000 inmates, finding that the prisons are overcrowded. The panel approved [order, PDF; JURIST report] a revised prison reduction plan [text, PDF] in January, but action on the plan has been delayed, pending the government's Supreme Court appeal. Counsel for the state of California argued that the "extraordinary and unprecedented order ... requiring the release of between 36,000 and 45,000 inmates ... is extraordinarily premature." Counsel for the prisoners argued that the court must allow the lower court to provide a remedy for 20 years of overcrowding that has violated inmates' constitutional rights. The justices appeared split with the more conservative justices favoring California's position and the liberal justices favoring the prisoners'. Justice Anthony Kennedy may cast the deciding vote.

In CIGNA Corp. v. Amara [oral arguments transcript, PDF; JURIST report], the court heard arguments on what "showing" is required to entitle participants of the Employee Retirement Income Security Act (ERISA) [materials] to recover benefits where there has been an alleged inconsistency between the explanation of benefits and the terms of the plan. The US Court of Appeals for the Second Circuit applied a "likely harm" standard when affirming the district court's ruling. The circuit courts are deeply divided over this issue, with some requiring a showing of prejudice or reliance in order to recover benefits and others only requiring a discrepancy between the explanation of benefits and the terms of the plan. The Second Circuit has been the only circuit to apply the "likely harm" standard.




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ICJ orders DRC to compensate Guinea for false detention of businessman
Julia Zebley on November 30, 2010 2:16 PM ET

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[JURIST] On Tuesday, the International Court of Justice (ICJ) [official website] ordered the Democratic Republic of Congo (DRC) [BBC backgrounder] to pay an undetermined amount to Guinea for the 1988 arbitrary imprisonment of a Guinean businessman. The tribunal found [judgment, PDF] that the DRC violated Articles 6 and 12 of the African Charter on Human and Peoples' Rights [text] as well as Articles 9 and 13 of the International Covenant on Civil and Political Rights [text] by the arrest, two month imprisonment, and expulsion of Ahmadou Sadio Diallo [ICJ case materials]. The ICJ did not find the DRC in violation of any international law when it seized the two companies, Africom-Zaire and Africontainers-Zaire, that Diallo founded in the DRC and prevented him from continuing business with them, however the court did find that his detention and expulsion were contrary to law, stating:
The DRC has failed to produce a single document or any other form of evidence to prove that Mr. Diallo was notified of the expulsion decree at the time of his arrest on 5 November 1995, or that he was in some way informed, at that time, of the reason for his arrest. Although the expulsion decree itself did not give specific reasons, as pointed out above, the notification of this decree at the time of Mr. Diallo's arrest would have informed him sufficiently of the reasons for that arrest for the purposes of Article 9, paragraph 2, since it would have indicated to Mr. Diallo that he had been arrested for the purpose of an expulsion procedure and would have allowed him, if necessary, to take the appropriate steps to challenge the lawfulness of the decree. However, no information of this kind was provided to him; the DRC, which should be in a position to prove the date on which Mr. Diallo was notified of the decree, has presented no evidence to that effect.
Earlier in the proceedings, Guinea demanded a payment of 36 billion pounds [BBC news]. The DRC has six months to come to a settlement with Guinea, or the ICJ will determine a settlement amount.

Diallo was a Guinean citizen living in the DRC, then known as Zaire, where he established the import-export companies Africom-Zaire and Africontainers-Zaire, which dealt with the containerized transport of goods. After attempting to to collect on debts from business partners Zaire Shell, Zaire Mobil, Zaire Fina and Gecamines, Diallo was arrested and imprisoned, and then released after two months, in 1988. After seizing several properties of Diallo, the Zairean Prime Minister issued an expulsion decree against him in 1995, when he returned to Guinea. Guinea brought suit [application, in French, PDF] against the DRC in 1998, contending that Diallo was "unlawfully imprisoned by the authorities of that State" and "divested from his important investments, companies, bank accounts, movable and immovable properties, then expelled." The DRC argued [press release, PDF] that since it was no longer the nation of Zaire, it could not be held liable to what had occurred under that regime, and also claimed that Diallo had not exhausted all local remedies.




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Serbia requests extradition of accused Nazi living in US
Matt Glenn on November 30, 2010 1:51 PM ET

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[JURIST] Serbian Justice Minister Snezana Malovic [official profile] said that Serbia has filed documents asking the US to extradite accused Nazi war criminal and naturalized US citizen Peter Egner [JURIST news archive] to Serbia so that he can stand trial on war crimes charges. Serbian prosecutors claim that the Yugoslavia-born Egner [AP report] was part of the Einsatzgruppen [USHMM backgrounder], a German military unit blamed for the deaths of more than 17,000 Serbian Jews and other minorities during Germany's occupation of Serbia in World War II. Egner admitted to US federal officials in 2007 that he had been a member of the squad, which is alleged to have rounded up women and children in specially modified vans to gas them with carbon monoxide. He is currently fighting efforts by the US Department of Justice (DOJ) [official website] to revoke his citizenship [JURIST report], which would allow the government to extradite him to Serbia to stand trial on numerous counts of war crimes.

Serbia's Office the War Crimes Prosecutor [official website] announced in 2009 that it would ask the US for Egner's extradition [JURIST report]. In July 2008, Serbian prosecutors confirmed [JURIST report] that they were gathering evidence for a case against Egner. Earlier that same week, the DOJ filed a complaint [text, PDF] in the US District Court for the Western District of Washington [official website] seeking to revoke Egner's US citizenship. Egner became a US citizen in 1966 but failed to disclose his Nazi service on his citizenship application. The DOJ argued that he was ineligible for citizenship both because of his service and because he concealed that information on his application.




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EU announces antitrust probe into Google business practices
John Paul Putney on November 30, 2010 1:15 PM ET

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[JURIST] The European Commission [official website] on Tuesday announced a formal investigation [press release] into allegations that Google [corporate website; JURIST news archive] abused its dominant market position by manipulating search results to give its own services preferential placement. The investigation will be the first formal investigation by a major regulatory agency [Al Jazeera report] into the Internet search giant's business practices. The announcement follows complaints from three Europe-based search service providers that Google lowered the ranking of unpaid search results of their competing services and imposed exclusivity obligations on advertising partners with the goal of shutting out competition. The three companies that lodged complaints are UK-based price comparison site Foundem, French legal search engine ejustice.fr and Italian shopping site Ciao [websites], owned by Microsoft through its own search engine Bing, which has struggled to wrestle online market share [AP report] away from Google. In a statement [text], Google stressed:
We've always focused on putting the user first by providing the best possible answers as quickly as possible - and our product innovation and engineering talent have delivered results that users seem to like, in a world where the competition is only one click away. ... We built Google for users, not websites. ... Not every website can come out on top, or even appear on the first page of our results, so there will almost always be website owners who are unhappy about their rankings.
Google pledged to "work closely with the Commission to answer their questions"

Currently, Google faces separate antitrust inquiries in Italy, Germany and France, in addition to the EU probe. Recently, Google has also faced criticism on privacy and copyright protection in several countries. Earlier this month, the US Federal Communications Commission (FCC) [official website] confirmed that it is investigating Google [JURIST report] to determine if it violated communications laws when its Street View vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. Additionally, the UK Information Commissioner's Office (ICO) [official website] announced that the company committed a "significant breach" [JURIST report] of the country's Data Protection Act [text] through its Street View data collection. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Also in October, Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that the Street View breach violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF]. Investigations were also initiated in Australia, South Korea and Spain [JURIST reports]. Also this month, Google announced that it had settled [JURIST report] a class action lawsuit regarding privacy breaches related to its Google Buzz social networking program.




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Supreme Court upholds limits on municipal liability
Matt Glenn on November 30, 2010 1:14 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Los Angeles County v. Humphries [Cornell LII backgrounder] that, when alleging a municipality violated their civil rights under 42 USC § 1983 [text], plaintiffs "must show that their injury was caused by a municipal policy or custom," even if they are only seeking injunctive or declaratory relief. Tuesday's opinion, authored by Justice Stephen Breyer, drew heavily from Monell v. New York City Department of Social Services [opinion text], which held that, to prevail on a § 1983 claim for monetary damages, plaintiffs must show a municipal policy or custom that caused their injuries. The court rejected the petitioners' arguments that Monell should me be limited to monetary damages, pointing out that language in the statute does not differentiate between types of relief requested. The court reasoned that its ruling in Monell left no room for holding municipalities strictly liable for the actions of their employees or for actions that are not part of that municipality's policy or custom. The court remanded the case to the US Court of Appeals for the Ninth Circuit for proceedings consistent with Tuesday's ruling. Justice Elena Kagan took no part in the decision.

The court heard oral arguments [oral arguments transcript, PDF; JURIST report] in October after agreeing to hear the case [JURIST report] in February. The case arose after two parents were unable to have their names removed from California's Child Abuse Central Index [official materials], a database that collects reports of child abuse, after the charges against them were dismissed. The Ninth Circuit found [opinion, PDF] that the inability to remove "factually innocent" suspects from the database violated their rights under the Fourth Amendment and subsequently awarded $652,000 in attorney's fees for the appeal. The county challenged the Ninth Circuit's ruling on the grounds that the couple failed to show that the county had adopted a policy or practice that resulted in the constitutional violation, as required by Monell and that their failure to do so meant that they were not "prevailing parties" for the purposes of fee awards under 42 USC § 1988 [text].




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First UK hate crimes report reveals 50,000 incidents reported last year
Drew Singer on November 30, 2010 1:03 PM ET

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[JURIST] More than 50,000 hate crimes were reported last year in England, Wales and Northern Ireland, according to a report [text, PDF; press release] released Tuesday, the first time such a report has been made public. The Association of Chief Police Officers [association website], a private company consisting of police officers from England, Wales and Northern Ireland, said that it has published the data with the hopes of encouraging other victims to come forward and report crimes. According to the report, police view an apparent increase in these figured from 2008 as a positive sign, indicating that more crimes are being reported and not necessarily that more crimes are being committed. In all, 52,028 crimes were reported in 2009 with the motivation for the offense being prejudice:
  • Race: 43,426
  • Religion/Faith: 2,083
  • Sexual Orientation: 4,805
  • Transgender: 312
  • Disability: 1,402
  • Total: 52,028
The report says that 703 of the faith-based crimes were of antisemitic nature.

Last week, the FBI reported a decrease in US hate crimes [JURIST report] for 2009. The number of reported incidents was down to 6,604 from 7,783 in 2008, while the number of reported victims was down to 8,336 from 9,691. In June, Canadian police reported a 35 percent increase in hate crimes [JURIST report] from 2007 to 2008. Conversely, Russian racial hate crimes decreased slightly in 2009 [JURIST report] because of increased police efforts, according to a report from the SOVA Center [advocacy website] in January.




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Second US soldier charged in probe into Afghan civilian deaths
Aman Kakar on November 30, 2010 12:10 PM ET

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[JURIST] Major General Curtis Scaparrotti of the US Army [official website] on Monday ordered a court-martial for Staff Sergeant David Bram stemming from a larger case involving five soldiers accused of killing Afghan citizens. Bram is charged [CNN report] with conspiracy to commit assault and battery, unlawfully striking another solider, violating a lawful order, dereliction of duty, cruelty, maltreatment and endeavoring to impede an investigation. He is not among the five men accused of murder and conspiracy to commit murder. If convicted of all the charges, he could face nine-and-a-half years in prison. Bram is accused of severely beating an Army private [Reuters report] in his unit to keep the solider from informing superiors about alleged drug abuse within the unit.

This the second court-martial resulting from an investigation into 12 infantry men accused of terrorizing civilians and fellow soldiers and illegal drug use in Afghanistan. In June, the US Army charged Specialist Jeremy Morlock [JURIST report] with three counts of premeditated murder and one count of assault in the death of three Afghan civilians. The Army announced in May [JURIST report] that its Criminal Investigation Command was opening an investigation into the civilian deaths in Kandahar. The charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan. In April, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. Hutchins was serving an 11-year sentence, reduced from 15 years [JURIST report], for his role in the April 2006 kidnapping and murder of an Iraqi civilian. In December, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September.




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Federal judge sentences Somali pirate to 30 years
Megan McKee on November 30, 2010 9:28 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Monday sentenced [press release] Somali citizen Jama Idle Ibrahim to 30 years in prison for an 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 [JURIST report] 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. Monday's sentencing marks the first in Norfolk for acts of piracy in more than 150 years. Ibrahim still faces additional sentencing after pleading guilty [JURIST report] in the District of Columbia to charges relating to a 2008 attack on the M/V CEC Future.

Earlier this month, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against Ibrahim and five other defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. 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 Germany, Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Federal judge blocks Oklahoma Islamic law ban
Zach Zagger on November 30, 2010 8:54 AM ET

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[JURIST] A judge for the US District Court for the Western District of Oklahoma [official website] on Monday ordered a preliminary injunction [text, PDF] blocking the enforcement of the controversial Oklahoma constitutional amendment [SQ 755 text, PDF] banning the courts from considering international or Islamic law. Judge Vicki Miles-LeGrange ruled in favor of the plaintiff, Muneer Awad, executive director of Council on American-Islamic Relations (CAIR) [advocacy website] in Oklahoma, who brought the suit claiming that State Question 755 (SQ 755) violates the First Amendment [text] because it stigmatizes his Muslim religion. Miles-Legrange found that Awad was substantially likely to succeed on the merits:
Specifically, the Court finds that plaintiff has made a strong showing that State Question 755's amendment's primary effect inhibits religion and that the amendment fosters an excessive government entanglement with religion. While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff's faith.
Miles-LeGrange also stressed that the Bill of Rights was meant to protect the majority from taking away rights of individuals. SQ 755 was overwhelmingly approved [JURIST report] in the November 2 mid-term elections with 70 percent of the vote.

Miles-LeGrange's preliminary injunction comes less than a week after she extended a temporary restraining order she issued [JURIST report] just six days after the election, stopping the Oklahoma Board of Elections [official website] from certifying the results. SQ 755 would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law. It was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma that would undermine [MSNBC report, video] Judeo-Christian principles on which he says the US is founded. Critics contend [JURIST comment] that it is based simply on an irrational fear of everything Muslim.




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Leaked cables reveal US urged Germany not to prosecute CIA officials for rendition
Zach Zagger on November 30, 2010 7:57 AM ET

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[JURIST] The Bush administration urged Germany not to prosecute Central Intelligence Agency (CIA) [official website] officials involved in the alleged illegal arrest and torture of German citizen Khaled El-Masri [JURIST news archive] under the administration's extraordinary rendition program [JURIST news archive], according to a document released Sunday by WikiLeaks [website; JURIST news archive]. The document [text], dated February 2, 2007, is a cable originating from the Berlin Embassy describing a discussion with German Deputy National Security Adviser Rolf Nikel about potential international arrest warrants dealing with the El-Masri case. The cable says that then-deputy chief of the US mission to Germany, John Koenig, pressured Germany with the intention "not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the U.S." German prosecutors had obtained arrest warrants on January 31, 2007, for the 13 CIA officials involved but decided not to seek extradition [JURIST reports] later in the year, after the meeting with the US. The leaked document is seen as proof of the diplomatic pressure the US has put on even some of its strongest allies over its handling of terrorism suspects. Ben Wizner of the American Civil Liberties Union [advocacy website] criticized [statement] the US's action as a way to shield officials from accountability saying, "[t]he best way to restore our standing in the world, reassert the rule of law and strengthen our democracy is to support, not obstruct, meaningful accountability for torture."

WikiLeaks is a website which purports to be a not-for-profit media organization that anonymously publishes leaked classified government documents. It has recently come under controversy due to a string of leaked documents including the cable in the El-Masri case. The US Department of Justice (DOJ) and the Department of Defense (DOD) [official websites] said Monday they were conducting criminal investigations [JURIST report] into WikiLeaks over its release of confidential government communications. El-Masri claims that the CIA kidnapped him while he was traveling to Macedonia in 2003 and transported him to a secret detention facility in Afghanistan where he was held for four months. The case has been a controversial issue in both the US and in Europe. In October, the European Court of Human Rights (ECHR) [official website] announced that it will review the involvement [JURIST report] of the Former Yugoslav Republic of Macedonia in El-Masri's arrest. In May, the Spanish National Court Office of the Prosecutor petitioned judge Ismael Moreno [JURIST report] to issue arrest warrants against the 13 CIA officials allegedly involved. The Prosecutor's Office argues that the court has jurisdiction to issue the warrants because the agents made a stop in Spanish territory using hidden identities without official Spanish government authorization to do so.




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Supreme Court considers federal habeas corpus cases
Jaclyn Belczyk on November 29, 2010 2:50 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in Wall v. Kholi [oral arguments transcript, PDF; JURIST report]. The court is considering whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an "application for State post-conviction or other collateral review" under 28 USC § 2244(d)(2) [text], resulting in an extension of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) [text, PDF] one-year limitations period for a state prisoner to file a federal habeas corpus petition. The US Court of Appeals for the First Circuit reversed the district court's judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. The First Circuit's decision was in line with a Tenth Circuit ruling on the same issue, but the Third, Fourth and Eleventh Circuits had previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA.

Also Monday, the court heard arguments in Walker v. Martin [oral arguments transcript, PDF; JURIST report] on whether a state law barring a prisoner from collaterally attacking his conviction is adequate to support a procedural bar to filing a habeas corpus petition. A California state law prevents prisoners from collaterally attacking their judgment when the prisoner "substantially delayed" filing his habeas petition. The court will decide whether the law is inadequate to bar the collateral attack because it is vague and because state courts failed to apply the state law consistently. The US Court of Appeals for the Ninth Circuit found [opinion, PDF] that the state's law was not well-established or "consistently applied" and therefore did not constitute a procedural bar to collaterally attacking the conviction.




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DOJ announces WikiLeaks criminal investigation
Matt Glenn on November 29, 2010 2:26 PM ET

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[JURIST] US Attorney General Eric Holder told reporters Monday that the Department of Justice (DOJ) and the Department of Defense (DOD) [official websites] are conducting a criminal investigation of WikiLeaks [website; JURIST news archive] over its release of confidential government communications. Holder condemned WikiLeaks' recent release of government cables [NYT backgrounder], saying that it threatens US national security [CNN report], specifically by risking the safety of those serving the country and straining important diplomatic relationships. Holder said during a press conference, that "there is an active ongoing criminal investigation that [the DOJ] is conducting with the Department of Defense." He added, "there is a basis to believe crimes have been committed, and we are in the process of investigating those crimes." On Sunday, the Obama administration issued a statement [press release] through Press Secretary Robert Gibbs condemning the releases as "reckless and dangerous." Holder did not say when he expected to announce the investigation's results.

Last month, UN Commissioner on Human Rights Navi Pillay [official profile] and Human Rights Watch [advocacy website] each requested [JURIST reports] that the US investigate alleged human rights abuses committed by US soldiers in Iraq detailed in documents posted on WikiLeaks. WikiLeaks founder Julian Assange said in July that documents posted to the website may tie the US to war crimes in Afghanistan. Also in July, the US Army formally charged [JURIST report] Pfc. Bradley Manning [advocacy website; NYT backgrounder] for leaking a controversial classified video [YouTube video] of a 2007 US helicopter strike in Iraq and classified State Department documents. Manning faces two charges [charge sheet, PDF] under the Uniform Code of Military Justice (UCMJ) [text] for the transfer of classified information and exceeding his authorized computer access. Manning was detained in Kuwait in May after releasing the video, entitled "Collateral Murder," on Wikileaks. Wikileaks does not ask sources to identify themselves, but Manning was reported to authorities by former hacker Andrian Lamo, who learned of the leaks after forming an online friendship with the soldier. Due to the gravity of the charges, Manning's investigation could lead to a court-martial.




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South Korea president calls North's attack 'crime against humanity'
Ashley Hileman on November 29, 2010 12:53 PM ET

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[JURIST] South Korean President Lee Myung-bak on Monday called North Korea's shelling of Yeonpyeong, which killed four, including two civilians, a crime against humanity. The president's statement [video, report in Korean] was the first addressed to the public since last week's attack on the residential area. He characterized North Korea's military action, which injured 16 and resulted in the deaths of two civilians in addition to two South Korean marines, as a crime against humanity because attacks against civilians are forbidden in times of war. Lee also vowed that North Korea will face retaliation efforts [Reuters report] if it continues provocation through the use of military means. In addition to addressing the public, Lee visited US troops stationed in South Korea to personally thank them for their showing of support, part of which has included continued participation with South Korean warships in military maneuvers. Japan has also showed support [NYT report] for South Korea, with prime minister Naoto Kan condemning North Korea's actions as "barbaric."

North Korea's ongoing conflict with the South is not the only human rights issue for which the country has faced criticism. Earlier this month, a UN committee condemned [JURIST report] what it called persistent, "grave violations of civil, political, economic, social and cultural rights" of its own people. In March, the UN Human Rights Council (UNHRC) [official website] adopted a resolution [JURIST report] condemning North Korea for human rights violations. The resolution [A/HRC/13/L.13 materials] decried "grave, widespread and systematic human rights abuses in the Democratic People's Republic of Korea, in particular the use of torture and labour camps against political prisoners and repatriated citizens of the Democratic People's Republic of Korea." Seeing little improvement, the council extended the assignment of Special Rapporteur Vitit Muntarbhorn [official profile], a Thai law professor who was appointed as a UN human rights expert in 2004, for one year and asked that North Korea and the UN General Assembly cooperate with and assist Muntarbhorn in his mission.




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Iraq court sentences Saddam-era deputy PM Aziz to additional prison term
LaToya Sawyer on November 29, 2010 12:34 PM ET

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[JURIST] An Iraqi court on Monday sentenced former foreign minister Tariq Aziz [BBC profile; JURIST news archive] to 10 years in prison for his involvement with the displacement and killing of minority Shiite Kurds during Saddam Hussein's rule in the 1980s. Aziz received a lesser sentence [Bloomberg report] compared to other co-conspirators whom the Iraqi court found had greater involvement with the genocide of the Shiite Kurds and sentenced them to death by hanging. The 10-year sentence is the third judgment against Aziz, adding to his March 2009 conviction for murder and his recent death sentence [JURIST reports] for efforts to eliminate Shiite Muslim resistance efforts after the First Gulf War. Despite the existing death sentence and the significant number of years of imprisonment already imposed by Iraqi courts, several other charges against Aziz [Guardian report] are still pending.

Aziz could have received the death penalty in this case for his actions against the Kurds, but the court did not impose that sentence and Iraqi President Jalal Talabani [BBC profile; JURIST news archive] has indicated that he will not sign a death warrant [JURIST report] for Aziz's existing sentence. Earlier this month, Aziz's lawyer filed a petition [JURIST report] for pardon of his death sentence on the grounds that the prosecution did not meet their burden of proof. Aziz's family has also called for his release on health grounds, claiming he has had two heart attacks and suffered a stroke [JURIST report] in January. Aziz has been in prison since 2003.




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Supreme Court to rule on Arizona campaign finance scheme
Ann Riley on November 29, 2010 12:09 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in four cases, consolidating two cases concerning campaign financing [JURIST news archive]. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [docket; cert. petition, PDF], the court will determine whether the First Amendment [text] forbids states from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents. In McComish v. Bennett [docket; cert. petition, PDF], the court will determine whether Arizona's matching funds, providing publicly financed candidates with additional subsidies triggered by independent expenditures or by raising and spending money of privately financed candidates, and the law regulating campaign financing to equalize resources among candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner violate the First and Fourteenth Amendments [text]. The US Court of Appeals for the Ninth Circuit concluded [opinion, PDF] that the Arizona public financing scheme and matching funds provision did not offend the First Amendment. The appeals court declined to reach a conclusion as to the equal protection claim and reversed and remanded the case to the US District Court for the District of Arizona.

In CSX Transportation v. McBride [docket; cert. petition, PDF], the court will determine whether recovery under the Federal Employers' Liability Act (FELA) [45 USC §§ 51-60 text] requires proof of proximate causation. The US Court of Appeals for the Seventh Circuit declined to hold [opinion, PDF] that common-law proximate causation is required to establish liability under FELA.

In Microsoft v. i4i Limited Partnership [docket; cert. petition, PDF], the court will determine whether the Patent Act [35 USC §§ 1-376 text] requires the invalidity defense to be proven by clear and convincing evidence. The US Court of Appeals for the Federal Circuit followed its precedent and held [opinion, PDF] that a challenger to a patent claim must prove invalidity by clear and convincing evidence. Additionally, the appeals court held that the US District Court for the Eastern District of Texas did not abuse its discretion in admitting evidence as to damages or in granting enhanced damages.

The court denied certiorari in Harper v. Maverick Recording Company, involving damages for illegally downloaded music and Gameche v. California [dockets]. The court took no action in Wal-Mart v. Dukes [docket, cert. petition, PDF] on Monday.




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Thailand court dismisses election funding case against ruling party
Eryn Correa on November 29, 2010 11:00 AM ET

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[JURIST] The Constitutional Court of Thailand [GlobaLex backgrounder] on Monday dismissed the case against the ruling Democrat Party [party website] for alleged misuse of campaign funds. Judge Udomsak Nitimontree dismissed the suit, brought in June by the Electoral Commission of Thailand (EC) [official website], citing the commissioner's failure to follow proper filing procedure by taking more than 15 days to file the complaint in court. Only six of the nine judges remained on the panel to deliver the verdict, with three judges recusing themselves for their involvement with the Democratic Party. If the suit had been successful, the Democratic Party would have been dissolved and party leaders, including current Prime Minister Abhisit Vejjajiva [official website], would have been banned from participating in politics for five years.

In August, the Constitutional Court began hearing the case [JURIST report], which centered around the misuse of an EC electoral grant where the EC alleged funds from the grant had been transferred to senior party officials in violation of the Political Party Act [LoC Backgrounder]. The EC called for the dissolution of the party [JURIST report] in April for failing to report donations from the business community and alleged misuse of the funds. 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.




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Switzerland voters approve deportation for non-citizens who commit crimes
Carrie Schimizzi on November 29, 2010 8:31 AM ET

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[JURIST] Swiss voters on Sunday approved [press release] by a 52.9 percent majority a "Deportation Initiative" [text, in French] that would amend the Swiss Constitution to allow the immediate deportation of foreigners who commit certain criminal offenses. The list of crimes range from serious offenses such as murder, rape and drug trafficking, to nonviolent crimes, including social security fraud and false claims for welfare benefits. A counter-proposal, which included stricter penalties for foreigners who commit crimes and the option for a judge to review each deportation case, failed to garner majority support. The initiative, promoted by the Swiss People's Party (SVP) [party website, in French], has been met with strong criticism from the international community, which argues the initiative violates international law, specifically a 1999 Bilateral Agreement on the Free Movement of Persons. Amnesty International (AI) [advocacy website] released a statement urging the Swiss government not to enforce [press release] the provisions of the initiative. AI Europe and Central Asia Deputy Programme Director John Dalhuisen said the initiative violates human rights:
If put into practice, the amendment to the constitution risks violating Switzerland's obligations under international law, in particular the obligation not to return anyone to a country where they would be at risk of torture or other forms of persecution. Switzerland cannot, and must not, allow popular -- and xenophobic -- initiatives to override its obligations under international law. Switzerland should also grant persons subject to deportation the opportunity to appeal any decision.
The Swiss government will now begin the process of refining the initiative [WP report] to comply with international treaties, and Parliament will vote to implement the initiative into law.

The controversial vote comes one year after Swiss voters passed another SVP initiative to ban the construction of minarets [JURIST report], a type of tower associated with Islamic mosques. The ban was opposed by the international community [JURIST report] and angered Muslims around the world. In March, the UN Human Rights Council [official website] adopted a resolution [text, PDF; JURIST report] condemning international religious discrimination and xenophobia. The resolution specifically criticized Switzerland's ban 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 that the ban violates Articles 9, 13 and 14 of the European Convention on Human Rights [text, PDF].




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Egypt parliamentary elections experience accusations of violence, corruption and fraud
Zach Zagger on November 28, 2010 2:52 PM ET

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[JURIST] Controversy surrounded the Egyptian parliamentary elections on Sunday as violence accompanied accusations of corruption, fraud and silencing the opposition. Reports have surfaced [AP report] of vote buying and the ejection of independent vote monitors from polling locations. The ruling National Democratic Party (NDP) has taken tough measures to hold onto its control of the 508-seat Egyptian Parliament [official websites]. The NDP denies [press release] the problems, saying that they are from “an outlawed group of people try[ing] to stifle the positive indications of the elections by spreading rumors about the whole process.” On Friday, eleven people were found guilty [JURIST report] of taking part in election demonstrations and campaigning for the banned Muslim Brotherhood [official website; JURIST news archive], the only legitimate opposition party threat. At least 1,200 supporters of the Muslim Brotherhood were arrested during the run-up to Sunday's election. The problems with this election raise issues for next year's presidential elections.

In the run-up to this election Egypt has attempted to silence opposition voices. In October, Egypt issued new media restrictions [JURIST report] that critics say effectively put all live television media, including talk shows and news shows, under government control. The telecommunications regulator cancelled the broadcast permits of all private media companies forcing them to apply for new licenses through the state television agency. The Muslim Brotherhood has also been targeted. In April, Attorney General Abdul Magid Mahmoud announced that five international MB members will be tried in an Egyptian criminal court [JURIST report] on charges of money laundering. Egypt has also used the emergency laws extensively against other opposition parties. In May, the Egyptian Parliament voted to extend [JURIST report] the country's state of emergency [JURIST news archive] for two years. Despite the two-year extension, parliament voted to limit the application of the emergency laws [Al Jazeera report] only to cases of terrorism and drug trafficking.




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Canada Supreme Court rules monitoring utility data is not a privacy violation
Drew Singer on November 28, 2010 10:06 AM ET

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[JURIST] The Supreme Court of Canada [official website] on Wednesday ruled [opinion, text] that the police did not violate constitutional protections by accessing a citizen’s electricity usage during an investigation. The Court reversed the decision of the appellate court by finding that during their investigation of a citizen for the possible existence of marijuana farms, the police did not violate the citizen’s rights by enlisting his electric company to monitor unusual patterns that could indicate illegal activities. The court held that the Canadian Constitution [text] "does not cloak the home in an impenetrable veil of privacy," and that it would be both impractical and unreasonable to expect otherwise. It added:
Also noteworthy here is that the home itself was never directly the object of a search. The location where the search took place was not the home but the transformer box where the power lines entering the home could be accessed. After some confusion in the courts below about whether the transformer was located on Mr. Gomboc’s property, it was common ground before this Court that it was not. Accordingly, no direct territorial privacy interest is engaged in this case.
The dissent argued that when a citizen gives a utility company access to information such as electricity use, he does so only under the condition that it is used for service purposes only, and kept private from other parties, including the government.

Earlier this year, Canada launched legal probes to investigate privacy violations of both Google and Facebook [JURIST reports]. Earlier this week, a US appeals court allowed a previous ruling against prolonged surveillance with global positioning systems (GPS) to stand [JURIST report]. In August, the court ruled that prolonged monitoring of a suspect's GPS data violates his Fourth Amendment protection against unreasonable search and seizure [JURIST report]. 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. 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.




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Ontario court sentences 'Toronto 18' member to 10 years
Carrie Schimizzi on November 27, 2010 1:33 PM ET

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[JURIST] A judge of the Ontario Superior Court of Justice [official website] Friday sentenced [press release] Steven Vikash Chand, a man previously convicted [JURIST report] in connection with the failed Toronto 18 [CBC timeline; JURIST news archive] terrorist plot, to 10 years in prison. Justice Fletcher Dawson handed down [National Post report] the sentence, which is greater than the eight years advocated by the defense, but Chand, who has been in prison since 2006, was credited for time served [CBC report] and will only serve another seven months and 10 days. Chand was previously found guilty [press release] of "participation in a terrorist group" and "counseling to commit fraud over $5,000 for the benefit of a terrorist group," which carries a maximum sentence of life in prison, after attempting to take out fraudulent bank loans [CBC report] in order to support the group. Both sides have 30 days to appeal the sentence.

Last month, the court also sentenced [JURIST report] Fahim Ahmad [JURIST news archive], the leader of the "Toronto 18", to 16 years in prison for his role in the terrorist organization. Ahmad's sentence was greater than the 12 years suggested by the defense but less than the 18 years requested by the Public Prosecution Service of Canada (PPSC) [official website]. The sentence follows an unanticipated change to a guilty plea mid-trial [JURIST report] in May. In February, Toronto 18 member Shareef Abdelhaleem was convicted [JURIST report] after a Canadian judge found that virtually no evidence existed to support his claims of entrapment. In January, Amin Mohamed Durrani was released [JURIST report] after pleading guilty to participating in and assisting a terrorist group. Also in January, a Canadian court sentenced [JURIST report] two members of the group, Zakaria Amara and Saad Gaya [JURIST op-ed], to life and 12 years in prison, respectively, for their roles in the plot. Abdelhaleem was the first adult to be tried among the "Toronto 18," originally arrested and charged under Section 83 [Canadian DOJ backgrounder] of the Anti-Terrorism Act [text], Canada's post-9/11 legislation.




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Council of Europe passes resolutions aimed at judicial reform
Carrie Schimizzi on November 27, 2010 1:18 PM ET

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[JURIST] The Council of Europe (COE) [official website] 30th Conference of Ministers of Justice [official website] passed three resolutions [official report, PDF] on Friday at the close of the three-day meeting in Istanbul. The resolutions, "data protection and privacy in the third millennium," "prison policy in today's Europe" and "modern, transparent and effective justice" [texts, PDF] declare that all 47 member countries will attempt to use new technologies [press release] to promote efficiency, accountability and transparency in each member state's justice system. The resolutions also aim to confront the issue of overcrowding in member state prisons and promote interest from non-member states on the Convention on Protecting Data [text, PDF]. The conference was the first COE event held under the Turkish Chairmanship of the Committee of Ministers. Sadullah Ergin [official profile], Minister of Justice of Turkey [official website], called on member states to work together to bring about reform, stating "We know that this is an ongoing process, and we know that all countries in Europe must work together if we want to make the vision a reality." The next Conference of Ministers of Justice will be held in Austria.

Earlier this year, the COE addressed reform for the European Court of Human Rights (ECHR) [official website] at the Interlaken Conference [official website; fact sheet, PDF] with a joint declaration [text, PDF; press release] released in February to undertake reforms [JURIST report] of the ECHR by the end of 2011 in order to address the increasing number of complaints. The ECHR currently has a backlog of approximately 120,000 cases, of which an estimated 90 percent are inadmissible or lack a legal basis. The declaration's Action Plan recognizes the need to preserve the right of individual petition, but considers changes to procedures that will reduce repetitive cases and filter admissible cases. Some of the measures proposed aim to increase efficiency [BBC report] by reducing the number of judges required to carry out some of these procedures.




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Egypt court sentences 11 for religious election campaigning
Aman Kakar on November 27, 2010 11:14 AM ET

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[JURIST] An Egyptian court on Friday sentenced 11 members of an opposition party to two years in prison for campaigning on behalf of the banned Muslim Brotherhood [official website; JURIST news archive]. The eleven were found guilty of taking part in election demonstrations [AFP report] and campaigning for Muslim Brotherhood using leaflets that contained religious slogans. On Wednesday, Human Rights Watch (HRW) [official website] expressed concern regarding the crackdown of opposition parties [press release] ahead of Sunday's parliamentary elections. The Egyptian government passed constitutional amendments in 2007 that have severely limited independent judicial supervision. Muslim Brotherhood members are contesting for 30 percent of the seats in the People's Assembly as independents. Abdelmoneim Maqsud, Muslim Brotherhood's chief lawyer, told HRW that security forces have arrested 1,306 members, and have brought 702 members before prosecutors.

The Muslim Brotherhood has previously been targeted by the Egyptian government. In April, Attorney General Abdul Magid Mahmoud announced that five international MB members will be tried in an Egyptian criminal court [JURIST report] on charges of money laundering. Egypt has also used the emergency laws extensively against other opposition parties. In July 2009, the trial of 26 individuals with alleged ties to Hezbollah was transferred to a court [JURIST report] established under the emergency laws. In February 2009, a military court utilized the laws during a trial in which it sentenced [JURIST report] opposition leader Magdy Ahmed Hussein to two years in prison. The emergency laws have been in effect continuously since the 1981 assassination of Egyptian president Anwar Sadat and were renewed [JURIST report] most recently in May.




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Sweden appeals court upholds Pirate Bay convictions
Eryn Correa on November 26, 2010 2:06 PM ET

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[JURIST] The Swedish Svea Appeals Court [materials, in English] Friday upheld [press release, in Swedish] the copyright convictions of Fredrik Neji, Peter Sunde and Carl Lundstroem for their involvement in running The Pirate Bay [official website], a file-sharing website. The Swedish appeals court additionally shortened their prison sentences from one year to between four and ten months but increased the damages owed to the entertainment industry to 46M kronor (US$6.5M). A fourth co-founder, Gottfrid Svartholm Warg, still awaits an appeal due to illness. All four men deny the charges against them, claiming not to have broken Swedish copyright laws because The Pirate Bay does not actually host any copyrighted material. Instead, they claim their site simply provides a forum for the transfer of BitTorrent files [backgrounder], a system that allows users to transfer large files from several users for faster downloading times. The site still remains in operation, despite Swedish authorities' efforts to shut it down. Neji plans to appeal to the Swedish Supreme Court.

In June of 2009, several Hollywood production companies filed suit [JURIST report] in Sweden against the operators of The Pirate Bay, seeking an injunction. The US companies, including Disney, Universal, and Columbia Pictures, filed a writ to sue in the Stockholm District Court, requesting that the court order the owners to cease and desist operations. In April of 2009, the website operators were sentenced to one year in prison for abetting copyright infringement [judgment, PDF, in Swedish; JURIST report].




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Advocacy groups petition for investigation of Guantanamo psychologist
Maureen Cosgrove on November 26, 2010 10:45 AM ET

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[JURIST] The Center for Justice and Accountability (CJA) [advocacy website] and the New York Civil Liberties Union (NYCLU) [advocacy website] petitioned a court on Wednesday to investigate a Guantanamo Bay psychologist who allegedly engaged in activities amounting to professional misconduct. The CJA is seeking disciplinary action [CJA backgrounder] against New York licensed psychologist Dr. John Leso, including revocation of his license to practice psychology, based on techniques he developed while leading a behavioral science consultation team at Guantanamo Bay [JURIST news archive] in 2002 and 2003. In July, the CJA filed a licensing complaint [text, PDF] with the New York Office of the Professions (NYOP) [official website] against Leso requesting an immediate investigation of his conduct, as well as acts committed by interrogators following his recommendations and under his supervision at Guantanamo Bay. The NYOP denied jurisdiction [ruling, PDF] over the complaint on the grounds that Leso's conduct was not consistent with the practice of psychology as defined under New York law, and therefore was not governed by New York rules of professional ethics.

This complaint is the most recent in the history of condemnations of Guantanamo Bay medical professionals. In April 2009, the International Committee of the Red Cross [official website] reported that medical professionals violated codes of medical ethics [JURIST report] by participating in and assisting in ill-treatment of Guantanamo Bay detainees. A 2008 report [text, PDF; executive summary, PDF] by the Physicians For Human Rights [official website] revealed that abuse and torture claims made by former detainees held by the US in Afghanistan, Guantanamo Bay and Iraq are supported by medical examinations [JURIST report] performed by the group. Doctors from 16 countries wrote a letter [JURIST report] in September 2007 condemning the US military for its treatment of detainees, particularly the policy of force-feeding to counteract hunger strikes. A month earlier, a commentary [text] published in the Journal of the American Medical Association [journal website] asserted that force-feeding was a violation of medical ethics [JURIST report].




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Guatemala foreign ministry defends attempts to extradite ex-interior minister
Dwyer Arce on November 25, 2010 3:00 PM ET

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[JURIST] The Guatemalan Foreign Ministry [official website, in Spanish] on Thursday defended its handling [press release, in Spanish] of the extradition of former interior minister Carlos Vielmann. A Spanish judge ordered Vielmann's release [JURIST report] Tuesday after Guatemalan authorities failed to request his extradition to face charges before the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish]. Guatemalan authorities were accused of purposely frustrating these efforts [AP report] by CICIG head Francisco Dall'Anese, who alleged that the Foreign Ministry had withheld papers necessary to the extradition for two weeks without reason. The ministry responded by insisting that it had "complied with all terms and acted promptly in the extradition process." It went on to state that the delay was due to the need to obtain the necessary signatures from the Spanish embassy, and the extradition papers were held by the ministry for only three days. The request process was then suspended in compliance with an order [text, in Spanish] to do so by the Guatemalan Constitutional Court [official website, in Spanish]. The Guatemalan government has until December 13 to request the extradition, but Dall'Anese expressed skepticism at the prospects of this.

The arrest warrant was issued in August [JURIST report] in relation to the extrajudicial execution of seven inmates at the Pavon prison in 2006. Vielmann has maintained his innocence, contending that the inmates died in a prison riot. Official corruption has been an ongoing problem in Guatemala. In June, the Constitutional Court removed Attorney General Conrado Reyes from office after the former head of CICIG, Carlos Castresana, accused him of ties to organized crime [JURIST reports]. 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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Rights group urges US to join landmine treaty
Julia Zebley on November 25, 2010 2:00 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the US [press release] to become a state party to the Mine Ban Treaty [text], repeating a plea made in March [JURIST report]. The call was prompted by the release of "Landmine Monitor 2010" [materials], an annual report detailing the treaty's progress released by the International Campaign to Ban Landmines (ICBL) [advocacy website]. The 2010 report shows international progress in preventing deaths from landmines, as well as in eradicating their use. HRW criticized the US government's stance on the issue while noting that it, along with almost all 37 states who have not joined the treaty, "are in de facto compliance with most of the treaty's provisions." HRW stated:
The US should not be on the outside looking in at the most successful humanitarian and disarmament treaty of the past decade. The Obama administration has been pondering the Mine Ban Treaty for more than a year now. It's time to make the right decision.
The US State Department said last November that the US would be maintaining its current policy [JURIST report], with spokesperson Ian Kelly stating [text] that "[the Obama administration] ... determined that we would not be able to meet our national defense needs, nor our security commitments to our friends and allies if we sign this convention." Despite this, the US government sent representatives to the December 2009 convention of state parties, where it announced that US landmine policy was under review. US representatives will attend the Tenth Meeting of States Parties to the Mine Ban Treaty [summit website], convening in Geneva next week.

The US is one of only two countries in the western hemisphere that is not a party to the treaty. The treaty currently has 156 state parties worldwide, with two additional signatories who have not ratified the treaty. In 2004, the Bush administration geared US policy away [CDI backgrounder] from signing the mine treaty and substituted usage of persistent mines with non-persistent mines. The Clinton administration did not sign the Mine Ban Treaty, but in 1998 issued Presidential Decision Directive 64 [FAS backgrounder], instructing the US military to explore alternate weapons and outlining US commitment to sign the treaty by 2006. The treaty opened for signature in December 1997, and signatory countries ban the use [ICBL backgrounder] of anti-personnel mines, destroy stockpiles and take measures towards clearing mines, as well as help countries with fewer resources clear mines and give assistance to victims.




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Texas jury convicts DeLay of money laundering and conspiracy
John Paul Putney on November 25, 2010 10:46 AM ET

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[JURIST] A jury for the 331st Criminal District Court [official website] of Texas found former US House Majority Leader Tom DeLay (R-TX) [JURIST news archive] guilty of money laundering and conspiracy Wednesday, after deliberating for 19 hours. The charges stemmed from $190,000 donated by corporate interests to DeLay's political action committee (PAC) during the 2002 midterm election, which was allegedly funneled through the Republican National Committee (RNC) [party website] for use in state elections. The RNC then distributed the money to seven legislative candidates at DeLay's direction in order to circumvent a state election law [Tex. Elec. Code § 253.094] forbidding corporate contributions to political campaigns, according to prosecutors. The former congressman faces anywhere from five years to life in prison [VOA report] although the judge may elect probation instead. DeLay maintains his innocence and plans to appeal the verdict, calling the trial both an abuse of power and a miscarriage of justice [AP report]. DeLay is set to be sentenced on December 20 [WP report].

In August, DeLay's lawyer confirmed that a US Department of Justice (DOJ) criminal probe into DeLay's association with lobbyist Jack Abramoff [JURIST news archive] had been dismissed without charges being filed [JURIST report]. The investigation lasted six years and included grand jury testimony from former aides as well as a review of more than 1,000 documents and e-mails from DeLay's office. 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 law 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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Spain judge orders release of Guatemala's former interior minister
Ashley Hileman on November 24, 2010 2:04 PM ET

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[JURIST] A Spanish judge on Tuesday ordered the release of former Guatemalan interior minister Carlos Vielmann after authorities in Guatemala failed to request his extradition. Vielmann has been imprisoned in Spain [El Mundo report, in Spanish] since his arrest in Madrid last month, and was to be extradited on charges [AP report] that he ordered the extrajudicial execution of seven inmates at the Pavon prison near Guatemala City in 2006. The International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] issued the warrant [JURIST report] for Vielmann's arrest in August, along with warrants for other former Guatemalan officials in its continued effort to end criminal impunity and dismantle illegal security groups there. Vielmann maintains that the inmates died in their attempt to fight against the invasion of thousands of police officers and soldiers seeking to regain control of the prison.

Official corruption has long been a problem in Guatemala, and there has been recent disagreement over whether CICIG is serving its purpose, with some arguing that it has overstepped its mandate [AP report]. However, the commission has been busy prosecuting alleged criminals. In June, the Guatemalan Constitutional Court [official website, in Spanish] removed Attorney General Conrado Reyes from office after the former head of CICIG, Carlos Castresana, accused him of ties to organized crime [JURIST reports]. 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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Federal jury convicts 5 Somali pirates
Jaclyn Belczyk on November 24, 2010 1:01 PM ET

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[JURIST] A jury for the US District Court for the Eastern District of Virginia [official website] on Wednesday convicted five Somali men on charges of piracy [JURIST news archive], the first such conviction in the US in nearly 200 years. The men were found guilty on charges of piracy, attacking to plunder a maritime vessel and assault with a dangerous weapon for their roles in an April attack on the USS Nichols, which was deployed to combat piracy in waters off the eastern coast of Africa. They were charged by a federal grand jury in April, and pleaded not guilty [JURIST report] in July. They face mandatory life sentences at a sentencing hearing scheduled for March 14.

Several other nations have also been conducting piracy trials. Earlier this week, a German court began the trial [JURIST report] of 10 suspected Somali pirates in that country's first piracy trial in 400 years. Last month, a Yemeni court sentenced [JURIST report] a group of 10 Somali pirates to five years in prison. Recently, the high court of Mombasa ruled that Kenya does not have jurisdiction [JURIST report] outside of its national waters, releasing nine suspected Somali pirates. The ruling could have implications for future piracy prosecutions, as Kenyan courts have handled the bulk of piracy trials. Other nations that have conducted such trials include the Netherlands, Seychelles and Mauritius [JURIST reports].




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US officer discharged under 'Don't Ask, Don't Tell' to be reinstated as DOJ appeals
Andrea Bottorff on November 24, 2010 12:48 PM ET

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[JURIST] US Air Force Major Margaret Witt, who was discharged under the military's "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy, will become the first openly gay person to serve in the US military after the Obama administration Wednesday did not pursue a stay of a previous federal court decision ordering her reinstatement. The US Department of Justice (DOJ) [official website] appealed [text, PDF] the reinstatement order Wednesday, although the government has commented that the appeal is standard procedure [Metro Weekly report] and does not lessen President Barack Obama's commitment to repealing the policy. In September, Judge Ronald Leighton of the US District Court for the Western District of Washington [official website] relied on testimony regarding Witt's exemplary record in finding that her sexual orientation did not hinder her unit, and that she should be returned to duty [JURIST report] as soon as possible. The Washington chapter of the American Civil Liberties Union (ACLU) [advocacy website] has been representing Witt and struggling to secure her reinstatement [press release] for the past four years. Witt worked for almost 20 years as a military flight nurse and received numerous honors and medals for her service before she was discharged under the DADT policy when authorities discovered that she had been in a long-term relationship with a civilian woman.

The Obama administration filed a brief [text, PDF; JURIST report] earlier this month asking the US Supreme Court [official website] not to rescind the stay preventing suspension of the military's DADT policy. The filing was in response to a petition filed a week earlier [text; JURIST report] by the Log Cabin Republicans [advocacy website] asking the court to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the US Court of Appeals for the Ninth Circuit [official website]. The government asked the court not to interrupt the policy while it is being considered in lower courts. The filing noted that Obama and Secretary of Defense Robert Gates [official profile] oppose the policy, but also stressed their support for the repeal of the policy through legislative measures, citing the need for deliberation, advance planning and training before transitioning from the 17-year-old policy. Also this month, Gates called on the 112th Congress to repeal DADT [JURIST report], and, in October, he issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Department of Defense officials. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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Germany high court upholds genetically modified crop restrictions
Jaclyn Belczyk on November 24, 2010 10:58 AM ET

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[JURIST] Germany's Federal Constitutional Court [official website, in German] on Wednesday upheld restrictions [judgment, in German; press release] on the use of genetically modified (GM) crops. The German state of Saxony-Anhalt had challenged the 2008 law, which requires "buffer zones" between GM and conventional crops. The law also mandates that GM farmers compensate neighbors if their crops become contaminated. Upholding the restrictions, the court found that the legislature acted in the public interest. The ruling was welcomed [AFP report] by environmental groups such as Greenpeace [advocacy website], but the German Farmer's Association said that the risk of financial liability was too great and warned against planting GM crops.

Courts and legislatures around the world have struggled with the increasingly prevalent issue of GM crops. In June, the US Supreme Court [official website] ruled [opinion, PDF; JURIST report] in Monsanto Company v. Geerston Seed Farms [Cornell LII backgrounder] that a trial court abused its discretion when it issued a nationwide injunction against a genetically modified alfalfa seed. The trial court sought to remedy a National Environmental Policy Act (NEPA) [EPA materials] violation based on only a remote possibility of reparable harm. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that NEPA plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction, affirming the nationwide injunction. Justice Samuel Alito, writing the opinion of the court, reversed the circuit court's ruling, stating that NEPA violations, absent unusual circumstances, are not exempt from the standard four-factor test to determine the availability of injunctive relief.




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Kyrgyzstan court sentences 19 Uzbeks for murder and mass rioting
Andrea Bottorff on November 24, 2010 10:35 AM ET

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[JURIST] A court in Kyrgyzstan on Wednesday sentenced 19 ethnic Uzbeks for their involvement in the June 2010 ethnic violence [Guardian backgrounder; JURIST news archive] that resulted in more than 300 deaths and an additional 2,000 injuries. Seventeen of the Uzbeks received life sentences and two received 25-year sentences for their participation in a June 13 riot [24.kg report] that blocked a major highway and killed 16 people in the Suzak district. The defense lawyers, who work for a local human rights organization and were giving free legal representation to the men, were allegedly threatened [AI report] by relatives of the Kyrgyz victims and told to keep silent during the trial. The trial began in September and had already been postponed due to alleged ethnic violence against the defendants' families. Lawyers for the Uzbek men said that they will appeal the conviction.

In September, a Kyrgyz court issued the first convictions [JURIST report] in connection with the June 2010 riots, handing down prison terms for eight ethnic Uzbeks in a case stemming from the murder of a Kyrgyz police officer during the violence. Judge Nurgazy Alymkulov of the Nooken District Court [GlobaLex backgrounder] sentenced five to life terms [RFE/RL report] on charges of murder, fomenting ethnic hatred, instigating violence and organizing public unrest. Two others were sentenced to 20 years in prison, and the last was sentenced to nine. Among those given life sentences was prominent Uzbek human rights activist Azimjan Askarov. The convictions were later described as politically motivated [Reuters report]. In July, the Kyrgyz government announced that it had opened more than 1,000 criminal cases [JURIST report] stemming from the violence, and that 106 individuals had been detained, with 97 in custody. Also in July, Kyrgyz President Roza Otunbayeva [Telegraph profile] established a commission [JURIST report] to investigate the ethnic violence against the country's Uzbek population.




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Malaysia high court rejects former opposition leader's defamation suit
Jaclyn Belczyk on November 24, 2010 9:37 AM ET

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[JURIST] The Federal Court of Malaysia [official website], the country's highest court, on Wednesday rejected a defamation suit filed by former deputy prime minister Anwar Ibrahim [official profile; JURIST news archive] against former prime minister Mahathir Mohamad [BBC profile]. Anwar filed suit in 2006 after Mahathir allegedly suggested at a human rights conference that Anwar was unfit for office because of his supposed homosexuality. His suit was dismissed by the Federal Court in 2007, and an appeals court rejected his appeal [JURIST reports] last year. The Federal Court upheld that ruling Wednesday, fining Anwar [AFP report] 70,000 ringgit (USD $22,320) for legal costs. Anwar, who served as deputy premier under Mahathir until 1998, had previously sued Mahathir for defamation in 1999, but the case was rejected at the time as "unsustainable."

Anwar is currently facing trial on charges of sodomizing his former aide Mohamad Saiful Bukhari Azlan in 2008. He has described the charges as a farce aimed at preventing him from taking his seat in Parliament [official website] following gains made by his party in the 2008 elections. He pleaded not guilty [JURIST report] in February. If convicted, he faces up to 20 years in prison. In March, Human Rights Watch (HRW) [advocacy website] urged the Malaysian government to drop all charges [JURIST report] against Anwar. HRW alleges that the trial has been "plagued by serious due process problems and government interference" and that the government should therefore drop all charges against Anwar. Earlier that month, the Malaysian Federal Court rejected Anwar's claim [JURIST reports] that his 1998 removal from office was unconstitutional. He recently reentered Malaysian politics following the expiration of a 10-year ban [JURIST report] against him for unrelated corruption charges.




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Lawyer for Saddam-era deputy PM Aziz seek death sentence pardon
John Paul Putney on November 23, 2010 2:56 PM ET

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[JURIST] A lawyer for former Iraqi foreign minister and deputy prime minister under Saddam Hussein [JURIST news archive], Tariq Aziz [BBC profile; JURIST news archive] filed a petition [text, PDF] Tuesday asking Iraqi President Jalal Talabani [BBC profile; JURIST news archive] to pardon the former leader. Aziz was sentenced to death by hanging [JURIST report] last month by the Iraqi High Criminal Court [ICRC backgrounder, PDF] following a conviction on charges related to the former regime's effort to eliminate Shiite Muslim resistance efforts after the First Gulf War. The petition filed by Giovanni Di Stefano attacks the conviction, citing a failure to prove the crime:
Under normal circumstances and in any other judicial systems operative in a democratic country under the criminal law the basis for a conviction is based upon 'beyond reasonable doubt.' In civil law it is 'on the balance of probabilities.' In Iraq a judge has to be simply 'satisfied' of the evidence and that is by far from any international standards which the Constitution of Iraq requires.
The petition notes that Aziz was convicted under Article 406 of the Iraqi Penal Code which requires that a person "willfully kills" and points to the prosecution's assertion that "Mr Aziz was a member of the ruling party and that he did not object or supported the decision to persecute members of the Da'wa Party and the killing of Mr Al Sadre." The petition concludes that the prosecution did not meet their required burden of proof and asks Talabani to issue a pardon citing Article 73 of the Iraqi Constitution [text, PDF], which gives the president the power to "issue a special pardon on the recommendation of the Prime Minister." The petition argues the power to pardon can be used "unilaterally and without prior motion," however, that proposition is disputed [Arab Monitor report]. Current Iraqi Prime Minister Nouri al-Maliki represents the Shia Da'wa party that Aziz was convicted of persecuting [UKPA report].

The petition follows pressure from the Vatican and various European countries opposed to the death penalty. On Wednesday, Talabani said in an interview [video] that he will not sign the execution order for Aziz, citing his opposition to capital punishment. Talabani also indicated that he felt compassion for Aziz who is a Christian and an old man. Aziz's family has called for his release on health grounds, claiming he has had two heart attacks and suffered a stroke [JURIST report] in January. In August 2009, Aziz was convicted of forcing Kurdish displacement [JURIST report] from northeast Iraq during the late 1980s, and was sentenced to seven years in prison. Prior to his March conviction, Aziz was acquitted of charges [JURIST report] in connection with the 1999 killing of protesters who rioted in Baghdad and Amarah following the alleged assassination of Grand Ayatollah Mohammed Sadiq al-Sadr.




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Alleged Nazi guard accuses Germany judges of bias
Sarah Paulsworth on November 23, 2010 2:15 PM ET

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[JURIST] Alleged Nazi death camp prison guard John Demjanjuk [TIME profile; JURIST news archive] issued a statement on Tuesday accusing the German judges conducting his trial of bias [text] after the they rejected a number of defense petitions. In total, the judges rejected 23 petitions [WP report], including motions regarding whether Demjanjuk, who is Ukranian born but obtained US citizenship after World War II, is fit for trial. His family and physician argue that Demjanjuk, who is 90 years old, is too frail and in too much pain to make it through the trial. "While they silence the prison doctors and deny us the weekly clinical reports - against all Western legal and humanitarian standards - the judges rely on a court appointed medical stooge whose therapy is to shoot my father with various drugs and call him fit," Demanjanjuk's son, John Jr., said in statement appended to his father's. John Demjanjuk Sr. said, "The decision to continue with this trial is a crime of infringement of the law and a deprivation of my liberty. With this statement, I bring a charge against Judges Alt, Lenz and Pfluger for infringement of the law and deprivation of my liberty. I ask that my statement be provided to the authorities who must investigate and decide to take action regarding this serious charge."

In May, a German court refused to dismiss [JURIST report] the charges against Demjanjuk , although his defense lawyers claimed there was a lack of evidence. It is alleged that Demjanjuk volunteered to work at Sobibor [Abendzeitung report, in German] after being captured by German forces while serving as a member of the Soviet army. Multiple appeals were filed in regards to Demjanjuk's health, but he was found fit to stand trial, and his appeals were rejected [JURIST reports] in October 2009. Demjanjuk's trial began [JURIST report] last November, but the hearings have been limited to no more than two-90 minute sessions per day in deference to his health. Demjanjuk was deported to Germany [JURIST report] from the US in May 2009. According to a leaked Department of Justice report [text], the US acted as a safe harbor for Nazis [JURIST report; JURIST commentary] after World War II.




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Iran criticized by UN for crackdown on human rights lawyers
Julia Zebley on November 23, 2010 1:26 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday expressed her concern [text] over Iran's crackdown on human rights defenders. Pillay expressed particular concern for Nasrin Sotoudeh, the human rights lawyer who has been conducting hunger strikes [BBC report] since her imprisonment [JURIST report] in September for allegedly spreading propaganda and colluding against national security. Earlier this year, Amnesty International (AI) [advocacy website; press release, PDF] and the International Campaign for Human Rights in Iran [advocacy website; press release] called on Pillay to pressure Iran to release Sotoudeh. Pillay called for Sotoudeh's release:
As we approach international Human Rights Day on 10 December, the world will be focusing on situations where human rights activists are not free to organize or speak out. I am very concerned that Nasrin Sotoudeh's case is part of a much broader crackdown, and that the situation of human rights defenders in Iran is growing more and more difficult. ... I urge the Iranian authorities to review her case urgently and expedite her release.
Pillay also noted that, "[f]reedom of speech and freedom of assembly are enshrined in international law, most importantly in the International Covenant on Civil and Political Rights [text], which is a binding treaty that Iran has ratified." Next week, the Office of the High Commissioner for Human Rights (OHCHR) [official website] will conduct a judicial colloquium in Tehran to instruct 30 Iranian judges and prosecutors on correct treatment of detainees, as well as how to conduct fair trials.

Pillay previously criticized [JURIST report] Iran's human rights record in March while presenting her annual report. Pillay condemned Iran for the "arbitrary arrest" of, and "harsh sentences, including capital punishment" given to, individuals involved in protests following the June 2009 presidential elections [JURIST news archive]. Iran defended [JURIST report] its human rights record to the UN in February. Sotoudeh worked on several high-profile cases related to the 2009 presidential election. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of mohareb, translated as being "enemies of God." Rahmanipour was executed [JURIST report] in January. Sotoudeh also represented Isa Saharkhiz [IPS profile], a well-known press activist who was sentenced [JURIST report] to four years in prison in 2006 for publishing articles against the constitution and offending the state media. In December 2009, AI labeled [JURIST report] human rights abuses committed by the Iranian government following the election among the worst of the past 20 years. Alleged human rights violations of detainees include sexual assault, beatings and forced confessions [JURIST reports].




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Georgia high court rules non-English speaking defendants have right to interpreter
Sarah Posner on November 23, 2010 12:59 PM ET

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[JURIST] The Supreme Court of Georgia [official website] ruled [opinion, PDF] Monday that defendants with limited English proficiency have a constitutional right to court interpreters in criminal trials. The court's decision overturned the Georgia Court of Appeals [official website] ruling denying the defendant's motion for a new trial. Annie Ling, whose native language is Mandarin Chinese, filed the motion after a jury convicted her of cruelty to children in the first degree. Ling argued that her trial counsel failed to secure an interpreter for trial, instead relying on her husband to help convey a last minute plea agreement offer. The court held that lack of an interpreter can impede a defendant's right to be present at trial in violation of the Sixth Amendment and Fourteenth Amendment Due Process Clause [texts] of the US Constitution. The court held that "when a question is raised in a motion for new trial as to whether a criminal defendant's due process rights have been violated by the absence of a qualified interpreter, the trial court must make and explain its findings on the issue on the record." The court remanded the case to the trial court in order for a finding of fact regarding Ling's claim regarding the trial counsel's failure to convey the prosecution's final plea agreement offer.

Rights groups, including the American Civil Liberties Union (ACLU) [advocacy website] have spoken out in support of court interpreters for defendants with limited English proficiency. The ACLU, which submitted a brief [text, PDF] on behalf of Ling, released a statement [press release] Monday applauding the court's decision. In response to the decision, Azadeh Shahshahani, Director of the National Security/Immigrants' Rights Project at the ACLU of Georgia said, "The constitutional guarantee of due process applies to everyone in this country, not just fluent English-speakers." The ACLU has also opposed [press release] a bill [text] voted on by the Virginia legislature which would require non-English speaking defendants to pay for interpreters at their criminal trials. The bill passed the House but was halted by the Senate's Committee for Courts of Justice.




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Israel legislators pass bill requiring referendum on peace treaties
Maureen Cosgrove on November 23, 2010 12:43 PM ET

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[JURIST] The Israeli Knesset [official website] approved legislation Monday that would require referendums on peace treaties involving ceding land that the country has annexed. In a 65-33 vote, the legislature decided that a referendum would be required [AP report] for any agreement involving the surrender of annexed land that fails to win a two-thirds majority in parliament. The legislation would apply to possible peace deals that include withdrawal from the Golan Heights or East Jerusalem, territories annexed in 1967. Under the new bill, a two-thirds Knesset majority vote would be required to cede land in East Jerusalem to the Palestinians or in the Golan Heights to Syria. Otherwise, either withdrawal would become subject to a national referendum. Tzipi Livni, the head of the opposition Kadima party, and Anat Wilf of the Labour party, opposed the bill [CNN report], which is supported by Prime Minister Benjamin Netanyahu [official website]. The legislation has been criticized [VOA report] by both Palestinian and Syrian officials.

East Jerusalem, along with the West Bank, was under Jordanian control until the 1967 war [NPR backgrounder], when Israel took control over the territory from Jordan and took the Gaza Strip [BBC backgrounder] from Egyptian control. Israel seized the Golan Heights [BBC backgrounder] from Syria during the 1967 war and asserted military control over the territory. Israel continues to construct settlements in East Jerusalem and the Golan Heights in an attempt to alter the ethnic and demographic composition [JURIST op-ed] of the occupied territories. In June, UN Secretary-General Ban Ki-moon [official website] criticized Israeli plans to demolish Palestinian homes [JURIST report] in East Jerusalem, describing them as contrary to international law. In March, Ban called Israeli settlement construction in the West Bank "illegal" [JURIST report].




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Federal appeals court allows ruling against warrantless GPS tracking to stand
Eryn Correa on November 23, 2010 10:50 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday declined [opinion, PDF] to rehear en banc a bid by the US Department of Justice (DOJ) [official website] to overturn a decision that prevents the government from using global positioning systems (GPS) technology to track suspects without a warrant. In a 5-4 vote, the court found that the petition [text, PDF] filed by the US Attorney General [official website] did not overcome the limitations of the automobile exception to the Fourth Amendment [text] warrant requirement. The court further rejected the argument that its previous ruling [JURIST report] frustrated the common practices sustained in visual and photographic surveillance of public places. Rather, the court noted that "this case does not require us to ... decide whether a hypothetical instance of prolonged visual surveillance would be a search subject to the warrant requirement of the Fourth Amendment." Chief Judge David Sentelle dissented, claiming that the court was ignoring precedent established by the US Supreme Court [official website] in United States v. Knotts [opinion, PDF], which allowed for electronic surveillance in public based on a lower expectation of privacy on public roads. The three-judge panel had distinguished the present case because too much personal information is revealed over longer periods of GPS surveillance.

Courts have struggled with how to apply Fourth Amendment protections to modern technology. In September, a three-judge panel for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that at times the government might need a warrant to obtain cell phone data [JURIST report] to track a person's location. In June, the US Supreme Court unanimously held [opinion, PDF] 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 [JURIST report] the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose. Last year, the Ohio Supreme Court [official website] ruled [opinion, PDF] that police must obtain a warrant before searching data stored in a cell phone [JURIST report].




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HRW urges repeal of Pakistan blasphemy laws
Carrie Schimizzi on November 23, 2010 9:15 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday called for the revocation [press release] of blasphemy laws [text; JURIST news archive] in Pakistan after a Christian woman was sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. Asia Bibi, a mother of four, is the first woman to be sentenced to death under the blasphemy law, and her case has sparked international outrage and demands for her release [AP report]. Pakistani President Asif Ali Zardari [official website] has ordered a review [press release] and may use his constitutional authority to pardon her [BBC report]. Critics of the laws believe they have been used as a means of discrimination and inciting violence. In its statement, HRW called on the Pakistani government to take action against Islamic militant groups who are targeting minority religions:
Legal discrimination against religious minorities and the failure of Pakistan's federal and provincial governments to address religious persecution by Islamist groups effectively enables atrocities against these groups and others who are vulnerable. The government seldom brings charges against those responsible for such violence and discrimination. Research by Human Rights Watch indicates that the police have not apprehended anyone implicated in such activity in the last several years.
The blasphemy laws were introduced in 1986 [AsiaNews report] as a way of protecting Muslim beliefs from insults. In response to the repeated calls for repeal, Pakistani Federal Minister for Minority Affairs Shahbaz Bhatti [official profile] said the laws may be amended [Reuters report] to prevent misuse, but they will not be repealed.

In May, the Pakistan Telecommunications Authority [official website] ordered [JURIST report] Internet service providers to block [press release] social networking site Facebook [website] in response to a competition created by a group of the website's members entitled "Draw Muhammad Day." The PTA issued the order following a decision by the Lahore High Court (LHC) [JURIST news archive] to block the website indefinitely. Depicting the Prophet Muhammad is considered blasphemous by Muslims, and has been a source of international controversy since 2005 when a Danish newspaper published caricatures of the Prophet Muhammad in a series of cartoons [JURIST news archive]. In February, Shahbaz Bhatti told the Agence France-Presse that he has been speaking to various political parties [JURIST report] in Pakistan and that his government is committed to doing away with laws [AP report] that are discriminatory to minorities. Bhatti made the comments at an interview with the AFP in Washington, DC, where he met with various lawmakers and officials during the National Prayer Breakfast. Bhatti discussed a proposed change in the law that would force judges to investigate blasphemy cases before they are docketed.




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Federal judge extends order blocking Oklahoma Islamic law ban
Zach Zagger on November 23, 2010 8:04 AM ET

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[JURIST] A judge for the US District Court for the Western District of Oklahoma [official website] on Monday extended [text, PDF] a temporary restraining order blocking the controversial Oklahoma constitutional amendment [SQ 755 text, PDF] banning the courts from considering foreign or Islamic law. Judge Vicki Miles-LeGrange said she needed more time [KOCO report] to deal with this issue, which pits the will of the voters against the First Amendment's Establishment Clause. Still, she is expected to rule by the end of the month. The case was brought [JURIST report] by Muneer Awad, executive director of Council on American-Islamic Relations (CAIR) [advocacy website] in Oklahoma, claiming the law is a violation of the First Amendment because it disfavors and stigmatizes his religion. Oklahoma voters overwhelmingly approved the measure [JURIST report] in the November 2 mid-term elections with 70 percent of the vote.

Miles-LeGrange issued the temporary restraining order [JURIST report] just six days after the election, stopping the Oklahoma Board of Elections [official website] from certifying the results. SQ 755 would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law. It was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. Duncan defended SQ 755 as necessary to protect Oklahoma [MSNBC report, video] from an attack on the fundamental Judeo-Christian principles on which he says the US is founded. On the other hand, Haroon Moghul [profile] Executive Director of the Maydan Institute [advocacy website] has argued [JURIST comment] that the passage of SQ 755 was done simply out of the "flawed logic" of a fear of everything Muslim.




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Judge denies immunity claim in Virginia Tech wrongful death lawsuit
Zach Zagger on November 23, 2010 7:21 AM ET

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[JURIST] A Virginia circuit court judge ruled Monday that a lawsuit by two families whose children were killed in the 2007 Virginia Tech shooting [JURIST news archive] can proceed against school administrators, despite their claims of sovereign immunity. The judge ruled [AP report] that defendants Charles Steger and former executive vice president James Hyatt are not protected by sovereign immunity because of their status as administrators of a state-funded higher education institution. Visiting judge William Alexander found that, though the positions are partially funded by the state, they do not qualify for sovereign immunity protection as high-ranking government officials, echoing a similar ruling [JURIST report] made in January. The lawsuit [JURIST report], seeking $10 million in damages, accuses the administrators of gross negligence for failing to warn students of the shootings immediately after the first shooting at 7:15 AM. It is being brought by families of victims Julia Pryde and Erin Petersen who opted out of an $11 million dollar settlement [JURIST report] to which 24 of the 32 victims' families agreed in June 2008. The trial is set for next September.

The settlement with the other victims' families gave each family $100,000 plus medical expenses and provided for meetings with Virginia Governor Tim Kaine and Virginia Tech administration and police officials. Many of the families in the settlement had considered wrongful death and personal injury lawsuits against the state of Virginia after an independent state panel reported that different school policies could have avoided some of the deaths, but the settlement terms required the families to release their claims. In December 2007, Congress passed by voice vote an act that closes a loophole [JURIST report] that allowed Virginia Tech shooter Seung-Hui Cho to purchase firearms despite a court order mandating psychiatric treatment. The Virginia Tech shootings left 33 people dead and 25 wounded in the deadliest shooting incident in US history [WP backgrounder].




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Serbia war crimes court convicts 2
Matt Glenn on November 22, 2010 3:46 PM ET

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[JURIST] The trial chamber of the Belgrade Higher Court's War Crimes Department convicted two men Monday whom prosecutors claim were involved in the deaths of about 700 Muslim civilians in 1992. The court sentenced former Zvormik mayor Branko Grujic [Bloomberg report] to six years in prison and former Zvormik local defense chief Branko Popovich to 15 years in prison for their roles in the torture and death of hundreds of Muslims in their hometown during the 1992-1995 Bosnian Civil War [JURIST news archive]. The pair was charged [indictment, PDF, in Serbian; JURIST report] in 2008 with using their positions to detain and kill civilians. The Office of the War Crimes Prosecutor [official website] announced it will appeal the sentences [press release, PDF], arguing that both sentences are too lenient and "are not in line with the defendants' responsibility, in terms of the number of victims involved, and in view of the size and brutality of the crime."

Serbia has undertaken an ongoing effort to apprehend those responsible for the atrocities that occurred in the region over the last two decades. Last month, the Belgrade Appeals Court overturned the war crimes conviction of former Bosnian officer Ilija Jurisic and ordered a retrial, ruling that the trial court had convicted him on insufficient evidence. In September, the War Crimes Chamber sentenced [press release, PDF; JURIST report] former paramilitary officer Zeljko Djukic [JURIST news archive] to 20 years in prison for his involvement in the deaths of 14 civilians in March 1999 during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. In August, Croatian authorities extradited Sretko Kalinic to Serbia for his alleged connection with the 2003 assassination [JURIST reports] of former Serbian prime minister Zoran Djindjic [BBC obituary; memorial website, in Serbian]. In July, an extradition hearing [JURIST report] for former Bosnian president Ejup Ganic began in London to determine whether the former leader should be forced to face trial in Serbia for alleged war crimes. The continuing attempt to find all individuals responsible for the atrocities has created a new political tension [JURIST comment] in the region that most believe will not soon go away.




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China senior official urges lawyers to promote social justice
Carrie Schimizzi on November 22, 2010 3:38 PM ET

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[JURIST] A top Chinese official on Monday called on the country's lawyers to promote law enforcement and social justice [Xinhua report] and encouraged lawyers, prosecutors and government officials to build a community of support and respect. During a meeting attended by members of the country's law firms and bar associations, Zhou Yongkang [BBC profile], a member of the Standing Committee of the Political Bureau of the Central Committee of the Communist Republic of China [official website], urged Chinese lawyers to take on more pro bono cases and resolve conflicts in order to promote social well-being. Zhou also encouraged the country's courts to hire more lawyers to act as both judges and prosecutors.

The Chinese government has recently focused attention on ridding corruption [JURIST news archive] in official channels. In April, Zhou appealed [JURIST report] to the nation's judges to be impartial when issuing rulings. Speaking in front of a national meeting of high court presidents in the Shaanxi Province [official website], Zhou stressed the importance of fair and honest justice in order to build a country ruled by law. Also in April, the Intermediate People's Court in Chongqing sentenced [JURIST report] a former deputy police chief and high-ranking judicial official to death for accepting bribes, protecting criminal gangs, rape and being unable to justify his large amount of personal assets. In March, the Hebei Province People's High Court upheld a life sentence for former Supreme People's Court (SPC) vice president Huang Songyou, who had been convicted [JURIST reports] of bribery and embezzlement. Earlier that month, Wang called for increased efforts to fight corruption [JURIST report] in the country's court system. In January, the SPC announced new anti-corruption rules [JURIST report] in an effort to increase public confidence in the rule of law.




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Madagascar voters approve new constitution
Carrie Schimizzi on November 22, 2010 2:43 PM ET

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[JURIST] Voters in Madagascar have approved a new constitution that will lower the minimum age requirement for presidential candidates, according to provisional results released Monday by the country's electoral commission. According to preliminary results, nearly 74 percent of voters approved the constitution [Reuters report], which will keep President Andry Rajoelina [official profile, in French; BBC profile] in power and allow him to run in the next presidential election scheduled for May 2011. The referendum poll, which had an approximate 53 percent voter turnout, had been overshadowed by strong political protest. On Wednesday, General Noel Rakotonandrasana allegedly led a group of about 20 soldiers into the capital city and tried to take control [JURIST report] of government institutions and seize power from Rajoelina in a failed coup attempt. Former president Marc Ravalomanana [BBC profile], who was ousted last year by Rajoelina, supported the military action [AFP report] and saw it as an effort to promote democracy.

Madagascar has faced ongoing political unrest [Reuters timeline] for almost two years, and Rajoelina's regime has not been recognized by the international community. In August, a Madagascar court sentenced [JURIST report] Ravalomanana 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 overthrow 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. Ravalomanana has been convicted [JURIST report] three times since he left power, and his lawyer claimed that the trials have been politically motivated to keep him from returning to Madagascar and running for reelection. Earlier in August, the country's political parties gave proposed names [AFP report] for the country's next prime minister to Rajoelina and scheduled last week's constitutional referendum, parliamentary elections in March and a first round of presidential polls next May.




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Myanmar high court dismisses Suu Kyi suit over party dissolution
Matt Glenn on November 22, 2010 2:37 PM ET

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[JURIST] The Myanmar Supreme Court dismissed a lawsuit Monday filed by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the government's dissolution of her National League of Democracy (NLD) [party website], according to unnamed government officials. The court has not announced why the suit was dismissed [DPA report]. Suu Kyi filed the suit [JURIST report] last week, seeking to reverse the government's decision to formally abolish the party [BBC report] in May after it failed to register for elections that took place earlier this month. Suu Kyi asked the court to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also to establish a parliament of lawmakers who won in the 1990 elections. Suu Kyi originally filed suit [JURIST report] with the court in April, but her claim was rejected. The dissolution was seen as political move by the military government in order to keep the NLD from participating in Myanmar's 2010 elections, the first in 20 years. Also Monday, reports emerged that Myanmar's government has suspended the publication of nine weekly news journals [News 24 report] that it deemed had given too much coverage to Suu Kyi's recent release from house arrest.

Suu Kyi's visit to the high court last week marked her first visit to Rangoon since the Myanmar Police Force [official website] released [JURIST report] her after almost eight years of house arrest. Her release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest. Though the challenge was originally scheduled to be heard in October, the court waited until after the controversial elections [JURIST report] to issue its ruling. It is anticipated that Suu Kyi will assist in a challenge [AP report] against the election results in which the ruling party maintained its hold on power, but the military government has warned [Telegraph report] against any kind of action by the opposition.




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Former Nazi prison guard dies while awaiting trial
Ann Riley on November 22, 2010 2:04 PM ET

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[JURIST] Accused Nazi guard Samuel Kunz [Trial Watch profile], 89, passed away in his home before he could be brought to trial for allegedly aiding in the killing of hundreds of thousands of Jewish people at the Belzec concentration camp [HRP backgrounder], according to statements by officials of the German District Court of Bonn [official website] on Monday. No further details as to his cause of death were released. Kunz, third on the Simon Wiesenthal Center [official website] most wanted list, remained free although he admitted to working at Belzec from 1942-1943. Israel Director of the Simon Wiesenthal Center Dr. Efraim Zuroff expressed frustration that Kunz was never brought to justice [press release]:
The fact that Samuel Kunz lived in Germany unprosecuted for so many decades is the result of a flawed prosecution policy which ignored virtually any Holocaust perpetrator who was not an officer. It was only the recent, long-awaited change in this policy which led to Kunz's indictment and the opportunity to hold him accountable for his crimes. We urge the German authorities to expedite all such cases, given the advanced age of the suspects, so that a measure of justice can still be achieved.
Kunz was accused of helping to murder 430,000 Jewish people [Al Jazeera report] during his time at Belzec and of shooting 10 other people in separate incidents.

Kunz was charged [JURIST report] in July by prosecutors of the German city of Dortmund. He maintained that he never personally murdered anyone [JTA report]. Kunz was also called as a witness in the case of fellow accused Nazi war criminal John Demjanjuk [NNDB profile, JURIST news archive]. The Ukrainian-born Demjanjuk faces 27,900 accessory accounts stemming from his alleged involvement as a guard at Sobibor concentration camp [Death Camps backgrounder].




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Germany court opens country's first piracy trial in 400 years
Ann Riley on November 22, 2010 1:43 PM ET

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[JURIST] The Hanseatic Higher Regional Court of Hamburg [official website, in German] on Monday commenced [press release, in German] the country's first piracy trial in 400 years against 10 accused Somali pirates [JURIST news archive] on Monday. The suspects are charged with hijacking a ship registered in Hamburg off the Horn of Africa and face maximum sentences of between 10 and 15 years in prison. The 10 accused pirates were arrested by the Dutch navy hours after they took over the "Taipan" on April 5. The container ship's crew hid in a panic room on board the ship and avoided capture by the pirates. The case is being held in a juvenile court [AFP report] as some of the accused were under 18 years old at the time of the attack. One individual claims that he was as young as 13, and, in Germany, criminal charges may not be imposed on individuals who are younger than 14. Presiding Judge Bernd Steinmetz instructed the court to assume the youngest pirate was at least 14 years old [Bloomberg report] at the time of the attack until the issue can be resolved.

Earlier this month, the US District Court for the Eastern District of Virginia [official website] began the first US piracy trial [JURIST report] in more than 100 years. In May, the Netherlands District Court of Rotterdam [official website, in Dutch] initiated the first modern European trial [JURIST report] of Somali pirates. The international community has been supporting actions taken against maritime piracy, but the UN has recently had to call for nations to assist Kenya in conducting piracy trials [JURIST report]. In April, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws as well as an announcement from the UN that a trust fund established to combat piracy will be funding five projects [UN News Centre report] in an effort to help Somalia and its neighbors reduce acts of piracy committed in nearby bodies of water. 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, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Rights group calls for release of last UK Guantanamo detainee
LaToya Sawyer on November 22, 2010 12:49 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Monday urged the US and the UK to work towards the release [press release] of the last British Guantanamo Bay [JURIST news archive] detainee, Shaker Aamer, whom AI claims is being arbitrarily detained. Aamer, a UK resident, has been held by the US since 2002 on claims that he was fighting with the Taliban. Currently in his ninth year of detainment, the US has yet to charge Aamer with any crime. AI's UK director, Kate Allen, called on Foreign Secretary William Hague and US officials to give a specific timetable for Aamer's release:
In the absence of charges or a proper trial we now need to see ... Mr Hague and the US authorities agreeing a specific timetable for Shaker's release. Dealing with what the government calls "legacy issues" in the "war on terror" must mean ensuring justice for Shaker. William Hague should make it a priority that he is returned to his family in Britain. At Amnesty we've always said that where the authorities suspect a person of terrorism they should be charged and given a fair hearing, but Guantanamo Bay has been an utter travesty of justice.
Hague and the US have been in discussions over Aamer's release, but no indications of his release have been made. The UK agrees that if Aamer is released, they will be wiling to accept him, as they did with former detainee Binyam Mohammed [JURIST report].

Aamer is one of 16 Guantanamo Bay detainees for whom the UK government recently announced a settlement [JURIST report] agreement for allegations of torture. Those allegations prompted the UK to launch an investigation into torture allegations in May, as well as issue a ruling that state intelligence agencies cannot use secret evidence [JURIST reports] in their defense against abuse. Aamer has been described as an activist within the Guantanamo detention center, negotiating with US military officials [Guardian report] over camp conditions and organizing hunger strikes when conditions did not improve. US President Barack Obama [official website] issued an executive order [JURIST report] in 2009 directing that the Guantanamo Bay military prison be closed "as soon as practicable, and no later than 1 year from the date of this order." Although progress is being made, there are currently 174 men still detained at the facility, the majority of whom have been there for more than eight years without facing charges.




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ICC begins trial of Congo rebel leader Bemba
Ashley Hileman on November 22, 2010 12:47 PM ET

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[JURIST] The trial of former vice president of the Democratic Republic of Congo (DRC) [BBC backgrounder], Jean-Pierre Bemba [case materials; JURIST news archive], began Monday in the International Criminal Court (ICC) [official website]. Bemba is on trial [Reuters report] for charges stemming from his activities as the military leader for the Movement for the Liberation of Congo (MLC). It is alleged that during 2002 and 2003, he committed two crimes against humanity and three war crimes in the territory of the Central African Republic (CAR) [BBC backgrounder]. While Bemba pleaded not guilty to all five charges, the prosecutors of the case intend to argue that his failure to control the troops he ordered into the CAR renders him criminally responsible for the rape and other crimes they committed there. Bemba is being tried [ICC press release] before three independent magistrates to ensure fairness and expediency. The trial, which had been postponed since April, can be viewed here [streaming video].

Last week, appellate judges of the ICC ruled [judgment, PDF] that the trial chamber must review [JURIST report] Bemba's continued detention in The Hague. This decision overturned the trial chamber's July ruling [text, PDF]. Pursuant to Article 60 of the Rome Statute [text, PDF], chambers are obligated to review an accused person's detention once every 120 days. Last month, the ICC affirmed [judgment, PDF] a trial chamber ruling and dismissed [JURIST report] Bemba's appeal challenging the admissibility of his case before the court. The court also concluded that its jurisdiction over the case did not violate a Rome Statute provision that prohibits the ICC from hearing cases after a country has decided not to prosecute the person concerned. The ICC held that the order issued by the CAR did not constitute a decision not to prosecute. In April, Bemba's lawyers argued before the court that charges against him should be dropped [JURIST report] because he had been denied due process and the charges were illegal. In addition, defense lawyers claimed that Bemba lacked the financial resources [JURIST report] necessary to ensure a fair trial. Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a sealed warrant for his arrest.




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FBI reports hate crime decrease for 2009
Eryn Correa on November 22, 2010 10:58 AM ET

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[JURIST] The number of reported hate crime incidents and victims decreased in 2009, according to the FBI Hate Crime Statistics report [materials; press release] released Monday. The number of reported incidents was down to 6,604 from 7,783 in 2008, while the number of reported victims was down to 8,336 from 9,691. Of these incidents, 61 percent were against persons, while the remaining percentage were directed towards property, numbers that were consistent with the 2008 report [JURIST report]. For the both years, more than half of the hate crimes reported were racially motivated, while religious belief was the next largest targeted category. Although there was an increase in the number of federal agencies providing data, preventing an exact comparison of 2008 and 2009 statistics, the FBI [official website] is confident that its increased efforts in investigating hate crimes have brought about positive change. Special Agent Cynthia Deitle, the head of the FBI civil rights program in Washington, DC, said [press release]:
During 2010, the FBI devoted additional resources to combat hate crime in those cities most at risk for bias-motivated violence. Working in collaboration with state and local law enforcement agencies, as well as our non-governmental partners, we are confident we can mitigate the risks and impact hate crimes have on individuals and communities.
The FBI also cited additions to the Matthew Shepard and James Byrd, Jr., Hate Crime Prevention Act [text; JURIST news archive] as positive improvements that will aid FBI investigation of hate crimes.

In June, Canadian police reported a 35 percent increase in hate crimes [JURIST report] from 2007 to 2008. Conversely, Russian racial hate crimes decreased slightly in 2009 [JURIST report] because of increased police efforts, according to a report from the SOVA Center [advocacy website] in January. In December, the US Department of Justice [official websites] announced plans to increase its efforts to prosecute hate crimes [JURIST report].




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Senator stalls bill aimed at online copyright infringement
Eryn Correa on November 21, 2010 1:56 PM ET

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[JURIST] US Senator Ron Wyden (D-OR) [official website] stalled a bill on Friday that would allow the federal government to block websites allegedly participating in copyright infringement. The Combatting Online Infringement and Counterfeit Act (COICA) [text, PDF] aims to discourage Internet sites dedicated to infringement activities by allowing the Attorney General to petition for injunctive relief against such sites found in both domestic and international domains. Wyden objects to the bill because of the powers it gives the government, powers that the Senator feels may result in internet censorship [San Francisco Chronicle report]. If Senator Wyden is successful in stalling the bill until 2011, it will have to be resubmitted to the Senate [official website] for further consideration.

The COICA was easily approved [JURIST report] with a 19-0 vote in the Senate Judiciary Committee on Thursday and has been hailed by the entertainment industry. Conversely, digital rights groups are strongly opposed to the bill, comparing the proposed restrictions to similar Internet restrictions [JURIST news archive] in Turkey and China. The COICA is part of the US initiative to discourage copyright infringement activities and infringement of other intellectual property rights. In October, the Office of the US Trade Representative (USTR) [official website] and other participating countries released [JURIST report] a draft [text, PDF] of the Anti-Counterfeiting Trade Agreement (ACTA) [USTR backgrounder], an international pact to defend intellectual property rights from counterfeit and piracy. The draft was released after three years [JURIST report] and 10 rounds of negotiations among the ACTA parties. Notably, China, a source of many of the world's counterfeit goods, is not a participant [Reuters report] in the agreement or discussions.




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Afghanistan officials disqualify 21 parliamentary candidates for fraud
Dwyer Arce on November 21, 2010 11:38 AM ET

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[JURIST] The Afghanistan Electoral Complaints Commission (ECC) [official website] on Sunday disqualified 21 candidates who had participated in September's parliamentary elections [IEC backgrounder] for electoral fraud. The ECC disqualified the candidates after finding widespread irregularities [Al Jazeera report] in the voting in 12 provinces. Of the disqualified candidates, 19 had either won or were leading in their districts, seven of which were incumbents and two were second place finishers in districts where the first place finisher was also disqualified. The disqualified candidates comprise almost one-tenth of those elected to the 249-seat Wolesi Jirga [official website], the Afghan Assembly. According to the ECC, the candidates do not have a right to appeal [AFP report] the decision. With the disqualification of the 21 candidates, it is expected that the ECC will certify the election results within days.

While the ECC has disqualified candidates, the body and the Independent Election Commission face charges of possible voter fraud [JURIST report]. The IEC was responsible for investigating complaints of voter fraud in the country, and is accused of tampering with the results. The Attorney General's office expressed concern that the IEC did not provide sufficient reason for last month's invalidation of 1.3 million votes [JURIST report], constituting nearly one-fourth of the 5.6 million votes cast nationwide. Following the disputed 2009 presidential election [JURIST news archive], the ECC invalidated results from 210 polling stations [JURIST report] and found clear and convincing evidence of fraud. In April, Afghanistan's President, Hamid Karzai, blamed foreign officials for the extensive irregularities [JURIST report] that occurred during the presidential election.




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Military court grants stay for US soldier charged in Afghanistan civilian death
Dwyer Arce on November 21, 2010 10:15 AM ET

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[JURIST] The US Army Court of Criminal Appeals [official website] on Friday stayed proceedings against a soldier charged in the death of an Afghan civilian in January. The stay was granted in the case of Private First Class Andrew Holmes of Joint Base Lewis-McChord, and allows time for the prosecution and defense to argue over the release of sealed photographs [Seattle Times report]. Holmes was charged in June along with Specialist Jeremy Morlock [JURIST report] and three others in relation to the death of an Afghan civilian who was shot in January in Kandahar province. The prosecution alleges that Holmes and the others murdered the man and attempted to make it appear as if he were an enemy combatant. The stay request came during an Article 32 hearing [10 USC § 832], which will determine if the government has enough evidence to proceed to a court-martial. The photographs, reported to depict Holmes and others posing with the man's body, have been sealed due to concerns that they would incite opposition forces in Afghanistan. The defense claims that the photographs show [AP report] that Holmes did not shoot the man, and argues that refusing to release them violates Holmes' Sixth Amendment right to a public trial [Cornell LII backgrounder]. The court granted the prosecution 20 days to respond to the defense request, and 14 days following that for the reply from the defense. Holmes has maintained his innocence.

In late October the Army announced that Morlock would undergo a court-martial [JURIST report] for his role in the death of the Afghan civilian. The Criminal Investigation Division investigation into that civilian death was announced in May [JURIST report]. The investigation was the latest into a number of incidents involving US soldiers in both Iraq and Afghanistan. In April, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. In December, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September.




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Senate approves ban on animal cruelty videos
Sarah Paulsworth on November 20, 2010 4:06 PM ET

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[JURIST] The US Senate [official website] unanimously approved a bill [text, PDF] Friday banning animal cruelty or "crush" videos. The House of Representatives [official website] approved the same ban [JURIST report] on Monday, and the provision is now being forward to President Barack Obama [official profile] for his signature. If the bill is signed into law, the creating, selling or distributing animal crush videos, which feature small animals being tortured or killed, will be a crime punishable with up to five years in prison. This is a revision of 1999 legislation [18 USC § 48 text] that was struck down by the US Supreme Court [official website; JURIST news archive] in April. Specifically, the revised legislation more narrowly defines what constitutes a crush video, excluding videos depicting "customary and normal veterinary or agricultural husbandry practices," as well as videos of hunting, fishing or trapping.

Congress was forced to revise the act following the Supreme Court's decision in United States v. Stevens [Cornell LII backgrounder], in which the 1999 law was struck down [JURIST report] for being substantially overbroad and therefore in violation of the First Amendment [text]. Legislators hope that the new amendments to the law will afford it greater enforceability and staying power in their efforts to ban crush videos. Following the Supreme Court's decision, animal rights activists focused on the narrowness of the ruling, as well as the dissent, and called on [JURIST comments] Congress to revise the law.




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ICC orders new review of Congo rebel leader Bemba's continued detention
Sarah Paulsworth on November 20, 2010 2:50 PM ET

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[JURIST] Appellate judges of the International Criminal Court (ICC) [official website] ruled [judgment, PDF; press release] Friday that the trial chamber must review the continued detention of former Democratic Republic of Congo [BBC backgrounder] vice-president Jean-Pierre Bemba [ICC materials; JURIST news archives]. This decision overturns the trial chamber's July ruling [text, PDF]. In its judgment, the appeals chamber ruled that the trial chamber must consider both changed circumstances and if the grounds on which the decision for detention was chosen persist. Pursuant to Article 60 the Rome Statute [text], chambers are obligated to review an accused person's detention once every 120 days. Bemba is set to go on trial Monday.

Last month, the ICC affirmed [judgment, PDF; press release] a trial chamber ruling and dismissed [JURIST report] Bemba's appeal challenging the admissibility of his case before the ICC. The court also concluded that the ICC's jurisdiction over the case does not violate a Rome Statute provision that prohibits the ICC from hearing cases after a country has decided not to prosecute the person concerned. In April, defense lawyers argued before the court that charges against Bemba should be dropped [JURIST report] because he had been denied due process and the charges are illegal. In addition, defense lawyers claimed that Bemba lacked the financial resources [JURIST report] necessary to ensure a fair trial. The ICC ordered Bemba to stand trial in July 2009 for alleged war crimes and crimes against humanity [JURIST report] committed between October 2002 and May 2003 while he was a military leader of the Congo Liberation Movement (MLC). Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a sealed warrant for his arrest. The charges in the arrest warrant included rape, torture, outrages upon personal dignity and pillaging.




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Senate approves minority farmer settlements
Daniel Makosky on November 20, 2010 12:44 PM ET

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[JURIST] The US Senate [official website] on Friday authorized by voice vote settlements between the US government and minority farmers for alleged discrimination. The settlements include [AP report] $3.4 billion to resolve claims that the Department of the Interior (DOI) [official website] mismanaged funds [DOI materials] held in trust for American Indian landowners [JURIST news archive], and $1.2 billion for African American farmers claiming they suffered racial discrimination in US Department of Agriculture (USDA) [official website] loan programs. The House of Representatives [official website] has twice approved the settlements, but the Senate previously failed to do so [JURIST report] in August after members of the Republican party objected to a unanimous consent motion proposed by Democratic members. The legislation will now return to the House before proceeding to President Barack Obama, who stated his intent to sign the bill into law [press release].

Last month, a judge for the US District Court for the District of Columbia [official website] extended the deadline [JURIST report] for Congress to approve the Indian Trust settlement to January 7, 2011, marking the seventh time [case materials] an extension had been granted since the settlement was reached [JURIST report] in December 2009. The settlements arose from two cases. Elouise Cobell originally filed litigation in 1996 related to DOI's alleged mismanagement of the Indian Trust, which was established by Congress in 1887 to hold proceeds from government-arranged leases to Indian lands. Although it was determined that the US government had not engaged in fraud, it was held that DOI unreasonably delayed accounting of the trust. In 1999, black farmers alleged in Pigford v. Glickman [BFAA backgrounder] that they were being denied USDA farm loans or forced to wait longer for loan approval than were non-minority farmers. The USDA and Department of Justice (DOJ) [official website] announced a $1.2 billion settlement [JURIST report] in February.




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Rights groups urge UN to investigate Libya torture allegations
Daniel Makosky on November 20, 2010 12:00 PM ET

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[JURIST] Three human rights groups on Friday jointly announced allegations of torture [press release] against Libyan security officials. Alkarama, Human Rights Watch (HRW) and TRIAL [advocacy websites] have obtained documents that purportedly demonstrate that government officials blocked an investigation into the role of the Libyan Internal Security Agency (ISA) in the death of Ismail al Khazmi. Al Khazmi was arrested by Internal Security agents without a warrant in 2006 and died while in custody. The documents include an autopsy that noted "bruising and contusions all over [al Khazmi's] body" and concluded that his death was a result of blunt force trauma. The groups have also obtained a prosecutor's report noting that General Saleh Ragam, the agency's head, declined to investigate the incident. The documents have been submitted to the UN Special Rapporteurs on Torture, Extrajudicial, Summary or Arbitrary Executions, and on the Independence of Judges and Lawyers [official websites] for review. Alkarama and TRIAL previously submitted the claims to the UN Human Rights Committee [official website], which is expected to release its findings [AFP report] in 2011.

Amnesty International (AI) [advocacy website] released a report [JURIST report] in June stating that Libya had made some progress with regards to human rights, but that the situation remained "dire." The report included violations by the ISA, which "appear[s] to have unchecked powers to arrest, detain and interrogate individuals suspected of dissent or of terrorism-related activities." AI also echoed concerns about the use of the death penalty, which the group expressed weeks earlier when it condemned the execution [press release; JURIST report] of 18 people, including foreign nationals, in Libya. HRW issued a similar report [text; JURIST report] in December, finding that Libya is making strides towards greater transparency and acknowledgment of human rights but that it still has a long way to go.




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9/11 rescue workers agree to settlement over injuries
Zach Zagger on November 19, 2010 4:27 PM ET

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[JURIST] More than 9,000 workers who took part in the 9/11 [JURIST news archive] rescue and cleanup efforts approved a negotiated settlement with the city of New York Friday in a lawsuit over their injuries. The parties relayed [settlement document; press release] to Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website] that 95.1 percent of the 10,043 eligible plaintiffs opted in to the settlement, barely reaching the 95 percent threshold. The plaintiffs, represented by Paul Napoli and his law firm [firm website], had faced a Tuesday deadline to approve the settlement, which leads to a total payout of at least $625 million. Each individual plaintiff will receive between $3,250 and $1.8 million [NYT report], depending on the extend of their injuries and illnesses. The settlement divides the plaintiffs into four tiers depending on their severity of their injuries. Over 98 percent of tier-four plaintiffs, with the worst injuries, opted in to the negotiated settlement. Attorneys for the plaintiffs said they were unsure whether late filed opt-in papers will be accepted by the court.

The settlement should bring some relief to the plaintiffs after seven years of litigation. Hellerstein had encouraged [WSJ report] the plaintiffs to accept the $712.5 million settlement agreement that was approved [JURIST reports] last June. Hellerstein approved this settlement after lawyers had agreed to reduce their fees from 33.33 percent to 25 percent after throwing out an earlier agreement [JURIST report] in March. In 2007, Hellerstein ruled [JURIST report] that the class action lawsuit filed by cleanup workers against the city and the Port Authority could proceed. The lawsuit was filed [JURIST report] in 2004.




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Costa Rica files ICJ complaint over Nicaragua border dispute
John Paul Putney on November 19, 2010 4:08 PM ET

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[JURIST] Costa Rica filed a complaint Thursday with the International Court of Justice (ICJ) [official website] accusing Nicaragua of violating its territorial integrity [press release, PDF] and damaging protected wetlands. Costa Rica contends that 50 Nicaraguan soldiers remain in the area and that Nicaragua is attempting to build a canal [Tico Times report] there. The filling came after Nicaraguan President Jose Daniel Ortega rejected a nearly unanimous Organization of American States (OAS) [official website] resolution [text] inviting Nicaragua to withdraw its troops. Ortega indicated the OAS had killed any possibility of resolving the dispute through dialogue [Guardian report] and lashed out at several neighboring OAS member states accusing them of being influenced by the drug trade. Ortega's environmental adviser also decried the environmental damage claims accusing Costa Rica of polluting the San Jose river [EFE report, in Spanish]. Costa Rica has requested the court stop the construction of the canal [CNN report] to avoid irreparable harm. The OAS is set reconvene in December to attempt to resolve the dispute [La Tercera Mundo report, in Spanish], but it is questionable whether Nicaragua will comply. Costa Rican Foreign Minister Rene Castro has expressed confidence, however, that the ICJ can compel Nicaragua to withdraw [AP report].

The dispute centers around Calero Island, a small area of land at the mouth of the San Jose river which has been disputed territory for over a century [LAT report]. The dispute arose last month when Eden Pastora, director of the dredging project, relied on a Google Maps error [Google Maps statement] based on flawed US State Department [official website] information to send troops to the area that Nicaragua now refuses to leave [Bloomberg report]. In 2009, the ICJ adjudicated another dispute [JURIST report] between Costa Rica and Nicaragua surrounding use of the San Jose river, which separates the two Central American nations. The court ruled [judgment, PDF] in July 2009 that Nicaragua had interfered with Costa Rica's right of free navigation on the San Juan river four years after Costa Rica filed the complaint [case materials] in 2005.




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ICC prosecutor condemns Guinea post-election violence
Aman Kakar on November 19, 2010 2:48 PM ET

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[JURIST] The deputy prosecutor of the International Criminal Court (ICC) [official website] on Friday issued a statement [text, PDF] lamenting the killing of seven people in a post-election violence in Guinea. The prosecutor, Fatou Bensouda [official profile], urged security forces to refrain from using excessive force against civilians. The statement asserted that the ICC would evaluate all reported acts of violence resulting from the crackdown. The UN Office of High Commissioner for Human Rights (OHCHR) [official website] also declared its concern over the actions of the security forces [UN News Centre report] in reacting to election demonstrations. The Guinean government declared a state of emergency on Wednesday, three days after Alpha Conde was declared the winner of the November 7 run-off election. The OHCHR reports excessive use of force against unarmed civilians by the Force Speciale de Securisation du Processus Electoral, a special police unit that was formed to secure the electoral process. Additionally, there have been reports of ethnically motivated violence between the Peuhl and Malinke groups. Amnesty International [advocacy website] also icalled on Guinean authorities to halt killings [text], arbitrary arrests and torture that have resulted from post-election crackdown. The state of emergency will be in effect until the election results are confirmed by the Supreme Court, expected to be next Monday.

November's election ended two years of military rule under a transitional government formed by military captain Moussa Dadis Camara [BBC profile], who staged a coup in the wake of the death of former president Lansana Conte [Guardian profile], the nation's ruler for 24 years. In October, the OHCHR expressed concern that security forces in Guinea "committed serious human rights violations" [JURIST report] in subduing demonstrations. In September, two Guinean election officials were convicted of election fraud [JURIST report] and sentenced to a year in jail in connection with irregularities that arose in the June presidential primary election, one incident in a string of controversies responsible for multiple delays of the runoff, which was initially scheduled for July [Reuters report]. In May, the ICC sent a delegation from the Office of the Prosecutor (OTP) [official website] to Guinea to further investigate the killing [JURIST report] of more than 150 pro-democracy protesters in Conakry in September 2009. The protesters had rallied against Camara, who announced in October that he intended to push elections forward three months and stand for election, breaking a promise not to run made shortly after he took power. Camara was ultimately forced into exile two months later after an assassination attempt staged by one of his aides.




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Holder calls for increased use of DNA evidence
Drew Singer on November 19, 2010 1:32 PM ET

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[JURIST] US Attorney General Eric Holder [official website] instructed federal prosecutors on Thursday to use DNA evidence as much as possible [press release], in a reversal of Bush administration policy. Among the changes, defendants who plead guilty will no longer have to waive their right to DNA evidence under the Innocence Protection Act of 2004 [text]. The memo also calls for the collection of DNA from all federal arrestees. Holder said in the press release that DNA collection, when available, is the most helpful ways to find facts:
DNA evidence is one of the most powerful tools available to the criminal justice system, and these new steps will ensure the department can use DNA to the greatest extent possible to solve crimes and ensure the guilty are convicted. Improving both the collection and the use of DNA evidence will help law enforcement and prosecutors keep communities safe."
The collection of DNA from federal arrestees has already been enacted, but Holder stressed it as a priority.

Last month, the US Supreme Court heard oral arguments [JURIST report] in Skinner v. Switzer on a convicted prisoner's right to seek access to DNA testing. The issue is whether a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim under § 1983 or if such a claim is cognizable only under a writ of habeas corpus. The US Court of Appeals for the Fifth Circuit affirmed a district court decision to dismiss Skinner's § 1983 claim seeking access to DNA evidence that may prove his innocence in the murders for which he is now sentenced to death, stating that relief could only be sought through habeas corpus. Last year, the Supreme Court ruled in District Attorney's Office v. Osborne [Cornell LII backgrounder; JURIST report] that a defendant does not have the right to obtain post-conviction access to the state’s biological evidence in order to do DNA testing.




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ICC begins preliminary investigations in Honduras and Nigeria
Matt Glenn on November 19, 2010 12:52 PM ET

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[JURIST] International Criminal Court (ICC) chief prosecutor Luis Moreno-Ocampo [official websites] told reporters Thursday that the ICC has opened preliminary investigations in Honduras and Nigeria. The Honduras investigation [Reuters report] will focus on the June 2009 coup [JURIST report] that removed Manuel Zeleya [BBC backgrounder; JURIST news archive] from power. Moreno-Ocampo did not elaborate on the Nigeria investigation. Following a preliminary investigation, Article 15 of the Rome Statute [text, PDF] requires the prosecutor to submit his findings to the ICC's pre-trial chamber if he believes there is a reasonable basis to proceed with a formal investigation. If the pre-trial chamber agrees that there is a reasonable basis to proceed with an investigation and finds it likely that the ICC has jurisdiction, it will authorize Moreno-Ocampo's office to conduct such an investigation.

In July, a Honduran court dismissed abuse of power charges against Zeleya because Zelaya's successor granted amnesty [JURIST reports] to Zeleya and those involved in his removal. In June, Amnesty International (AI) [advocacy website] accused the Honduran government [JURIST report] of failing to address human rights violations stemming from the June 2009 coup. AI contends that hundreds of people opposed to the coup have been beaten and detained. The group cited evidence that judges critical of the coup have "suffered a series of arbitrary transferrals and unfair disciplinary proceedings" as well as threats and intimidation. The interim government has been attempting to restore Honduras's reputation internationally. In May, the International Court of Justice (ICJ) [official website] announced that Honduras dropped proceedings against Brazil [JURIST report] brought by the Honduran interim government last October in response to the sheltering of Zelaya.




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Republican senators file brief supporting health care reform challenge
Julia Zebley on November 19, 2010 11:59 AM ET

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[JURIST] Thirty-three Republican senators filed an amicus curiae brief [text, PDF] on Thursday supporting state attorneys general in their legal effort [complaint, PDF; JURIST report] to have the Patient Protection and Affordable Care Act (PPACA) [HR 3590 materials; JURIST news archive] declared unconstitutional. The brief, filed in the US District Court for the Northern District of Florida [official website] supports the suit's proposed arguments that the PPACA violates the Commerce Clause [Cornell LII backgrounder] of the US Constitution. In making their argument, the senators attacked the individual mandate, arguing:
Indeed, in more than 200 years of debate as to the proper scope of the Commerce Power, the Supreme Court has never suggested that the Commerce Power allows Congress to impose affirmative obligations on passive individuals, or to punish individuals for failing to purchase a particular product. To the contrary, every landmark Commerce Clause case has dealt with congressional efforts to regulate different kinds of activity under the Commerce power. In every significant Commerce Clause case the Supreme Court has always had to decide whether Congress may regulate a given form of activity.
The Hill lists the 33 signatories to the brief, all of whom voted against passage [roll call] of the bill.

Florida Attorney General Bill McCollum [official website] filed the lawsuit in March, which is joined by 20 states [JURIST report] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report]. The suit was allowed to proceed [JURIST report] in October, despite an attempt to dismiss. On Thursday, McCollum sent a letter [text, PDF] asking 13 other state attorneys general to join Florida in the suit. A federal judge in Michigan ruled [JURIST report] in October that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions and it does not represent an unconstitutional direct tax. In August, a federal judge allowed a similar lawsuit filed in Virginia to proceed on narrow grounds [JURIST report], addressing only subject matter jurisdiction [Cornell LII backgrounder] and the legal sufficiency of the complaint. Several days later, McCollum cited the ruling in his response [JURIST report] to the Obama administration's motion to dismiss the Florida challenge, filed in June.




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India government approves additional compensation for Bhopal gas victims
Daniel Makosky on November 19, 2010 9:56 AM ET

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[JURIST] The Indian government announced Thursday that it has authorized additional compensation for the victims of the 1984 Bhopal chemical spill disaster [BBC backgrounder]. The new package includes USD $15.8 million [Reuters report], adding to the original disbursement in June of USD $148 million. The compensation was approved after the government faced criticism for perceived leniency in the sentencing of seven men convicted [JURIST report] in June on charges of "death by negligence." The men were sentenced to two years imprisonment 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 [corporate website] subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled.

The Indian Supreme Court [official website] announced in August that it will reconsider a ruling [JURIST report] allowing the men to be charged with negligence instead of culpable homicide. If the convictions are overturned and the men tried on charges of culpable homicide, they could face sentences of up to 10 years in prison. In July, the government apologized for improperly dumping waste [JURIST report] related to the incident The apology came one month after cabinet ministers announced the government would consider increasing compensation for victims of the disaster and seek the extradition [JURIST report] 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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Senate panel approves bill aimed at online piracy
Megan McKee on November 19, 2010 9:18 AM ET

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[JURIST] The US Senate Judiciary Committee [official website] on Thursday voted in favor of the Combating Online Infringement and Counterfeits Act (COICA) [text, PDF], which would better equip US law enforcement to combat websites engaged in the pirating of movies, television programs and music. The bill was approved [AFP report] by a vote of 19-0, and has received strong support from the entertainment industry. The bill would create a more streamlined and efficient process for the Justice Department to crack down on websites involved in piracy or the sale of counterfeit goods, even allowing for courts to order the shutdown of domains based outside the US. While the measure met no opposition in committee, it has been criticized widely by digital rights groups and it is likely to face some opposition when it goes before the full Senate or House of Representatives [official websites].

In October, the Office of the US Trade Representative (USTR) [official website] and other participating countries released [JURIST report] a draft [text, PDF] of the Anti-Counterfeiting Trade Agreement (ACTA) [USTR backgrounder], an international pact to defend intellectual property rights from counterfeit and piracy. The draft was released after three years [JURIST report] and 10 rounds of negotiations among the ACTA parties, which include the EU, Japan, Canada, Australia, Mexico and Korea, representing more than 50 percent of world trade. The agreement would establish a framework for combating counterfeiting and piracy of commercial goods that encourages international cooperation as well as strong enforcement practices. Participating countries agreed to further examine the document and plan to finalize the text of the agreement as soon as possible. The agreement will undergo a final review before it is opened for signatures. Notably, China, a source of many of the world's counterfeit goods, is not a participant [Reuters report] in the agreement or discussions.




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UN committee condemns North Korea rights violations
Daniel Makosky on November 19, 2010 9:08 AM ET

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[JURIST] The Third Committee (Social, Humanitarian and Cultural) [official website] of the UN General Assembly on Thursday adopted [press release] a resolution detailing its concerns with human rights violations in North Korea [JURIST news archive]. Passed 100-18 with 60 abstentions, the resolution [materials] takes issue with "[t]he persistence of continuing reports of systematic, widespread and grave violations of civil, political, economic, social and cultural rights in the Democratic People's Republic of Korea." The resolution proceeds to the General Assembly, which is expected to approve [AP report] the document. Also Thursday, the committee adopted resolutions condemning human rights violations in Iran and Myanmar [JURIST news archives].

In March, the UN Human Rights Council (UNHRC) [official website] adopted a similar resolution [materials; JURIST report] condemning North Korea for human rights violations. The resolution came shortly after former Special Rapporteur Vitit Muntarbhorn presented a report [JURIST report] to the body that found the situation in North Korea was deteriorating and that sanctions had not improved human rights conditions. Last year, Muntarbhorn criticized [JURIST report] North Korea, saying the country was responsible for a broad range of human rights violations [press release], including torture, public executions and widespread hunger. Muntarbhorn told the UNHRC in March 2009 that he found egregious human rights violations [JURIST report] in North Korea.




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Florida Supreme Court requiring all foreclosure proceedings to be public
Megan McKee on November 18, 2010 2:59 PM ET

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[JURIST] Chief Justice Charles Canady [official profile] of the Florida Supreme Court [official website] issued a memorandum [text, PDF] Wednesday to the chief judges of Florida's 20 judicial circuits directing them to ensure that all foreclosure proceedings in the state are open to the public. The directive came in response to transparency concerns [ACLU report] raised by the American Civil Liberties Union (ACLU) [advocacy website], media outlets and open-government organizations. These groups were particularly concerned by reports from across the state that suggested a number of foreclosure courts were allowing proceedings to occur behind closed doors rather than publicly as mandated by Florida law. In the memo, Canady stated that "[t]he courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public."

In October, New York Chief Judge Jonathan Lippman [official profile] announced [statement, PDF] a new court rule [JURIST report] that requires lawyers to file a separate affirmation [form, PDF] confirming the accuracy of paperwork used in residential foreclosure cases. The new rule was effective immediately and has been added to the New York State Unified Court System [official website] residential foreclosure rules [text]. Lippman explained that the new rule was an effort to provide better protection [press release] to people facing the possibility of losing their home, particularly in response to the recent discoveries of errors in foreclosure documents nationwide. Also in October, attorneys general from all 50 states and the District of Columbia announced [joint statement, PDF; JURIST report] that they have formed a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG), which will investigate allegations of procedural defects committed by mortgage loan companies during foreclosure processes. The MFMG explained that its investigation will focus on "robo-signing," a process by which individuals signed affidavits and other foreclosure documents without having personal knowledge of the facts and without confirming the accuracy of supporting documentation.




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Accused Russia arms dealer pleads not guilty in US court
Megan McKee on November 18, 2010 2:20 PM ET

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[JURIST] Accused Russian arms dealer Viktor Bout [BBC profile; JURIST news archive] pleaded not guilty in a US court on Wednesday and is currently being held without bail. Bout faces charges [AFP report] stemming from a 2008 indictment [text, PDF] for selling weapons to a terrorist group and conspiring to kill US nationals. Bout was arrested [Interpol press release] in 2008 in a joint operation carried out by US and Thai authorities in which he allegedly sought to sell arms to Revolutionary Armed Forces of Colombia (FARC) [CFR backgrounder]. Russia has continued to show strong support for Bout, claiming that he is an innocent businessman. If convicted, Bout could receive a maximum of a life sentence and a minimum of 25 years. Bout's next court date is scheduled for January 10.

Earlier this week, the Thai government extradited [JURIST report] Bout to the US to stand trail. In October, Bout filed an appeal [JURIST report] challenging the Bangkok Criminal Court's decision to dismiss [JURIST report] money laundering and fraud charges against him, which removed obstacles to his US extradition. According to Bout's lawyer Lak Nitiwatanavichan, the arms dealer was seeking to have these charges reinstated [Bangkok Post report] to avoid extradition to the US. In August, an appeals court in Thailand ruled that Bout could be extradited [JURIST report] to the US. The court's ruling overturned a decision it issued a year earlier, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law.




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Georgia lawmaker introduces bill banning illegal immigrants from public universities
Aman Kakar on November 18, 2010 2:08 PM ET

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[JURIST] A member of the Georgia House of Representatives [official website] introduced legislation on Wednesday to ban enrollment of illegal immigrants [HB 25 text; materials] in public post-secondary education institutions. The bill, introduced by Rep. Tom Rice (R) [official website], amends Title 50, Chapter 36 [text, PDF] of the Georgia code to include post-secondary education among the public benefits that require a verification of lawful presence in the US. Last month, the Board of Regents of the University System of Georgia [official website], adopted a policy under which five Georgia universities were effectively barred from admitting illegal immigrants [AP report] starting fall 2011. The legislation will be considered by the state legislators in January.

The issue of illegal immigration [JURIST news archive] has been the subject of legislation and lawsuits across the country. On Tuesday, the California Supreme Court [official website] ruled [opinion, PDF] that illegal immigrants are eligible to receive in-state tuition benefits at California's public colleges and universities. The court concluded that the California law did not violate federal immigration law because the exemption was not based on formal legal residency. Last month, a judge for the US District Court for the District of Arizona [official website] denied motions to dismiss a class action lawsuit [JURIST reports] challenging the constitutionality of the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. Under the law, it is designated a crime to be in the country illegally, and immigrants unable to verify their legal status could be arrested and jailed for six months and fined $2,500. In September, the US Court of Appeals for the Third Circuit [official website] ruled that two ordinances passed by the city of Hazleton, Pennsylvania, making it more difficult for illegal immigrants to live or work in the town are unconstitutional [JURIST report].




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UN rights chief says Bolivia indigenous people facing continued discrimination
Sarah Posner on November 18, 2010 1:14 PM ET

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[JURIST] UN High Commissioner for Human Rights Navanethem Pillay [official profile] warned Wednesday that, despite the Bolivian government's reforms, most indigenous people and other vulnerable groups continue to suffer from extreme poverty and exclusion [press release]. Pillay commended progress [UN News Centre report] by the Bolivian government in adopting reforms to end discrimination while voicing concerns over the lack of access to justice, particularly in rural communities. Noting various advances, Pillay commended several social programs adopted by the Bolivian government, particularly ones aimed at alleviating poverty and exclusion. Pillay suggested that "the soundest nation-building is one that takes into full account and promotes the rights of all citizens irrespective of their ethnicity, culture, sex, age, class or language." Pillay's comments come after her first visit to the country, where she spent five days talking to President Evo Morales [official website, in Spanish; BBC profile] and other key government officials. In addition, Pillay met with indigenous representatives and authorities, torture victims, and representatives from the Afro-Bolivian community.

The UN reported last year that the indigenous people of Bolivia and Paraguay are often forced into labor and face discrimination [press release], severe poverty and violence, urging the two countries to take action in order to protect the human rights of these groups. In October, Morales signed a controversial bill [text, PDF; in Spanish] into law that permits the government to punish media outlets for publishing racist content [JURIST report]. The legislation comes as part of a wider campaign by Morales to advance the interests of the majority indigenous community, which has been a theme of his presidency [JURIST report]. In June, the Bolivian National Congress approved legislation to create an independent justice system [JURIST report] for indigenous communities. Bolivia's new constitution [PDF text, in Spanish] took effect [JURIST report] in February 2009, giving more power to the country's indigenous majority. Morales said that the charter represented a new beginning, by providing for redistribution of land and natural resource revenues [JURIST report], the creation of congressional seats reserved for indigenous representatives and the institution of special courts for some indigenous communities.




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New Jersey high court rules efforts to recall US senator unconstitutional
Hillary Stemple on November 18, 2010 1:10 PM ET

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[JURIST] The New Jersey Supreme Court [official website] ruled [opinion, PDF] Thursday that a state statute and portion of the New Jersey Constitution [text] authorizing the recall of US senators is unconstitutional. The ruling was issued in a case involving efforts to recall Senator Robert Menendez (D-NJ) [official website]. The recall proceedings were triggered last September after a recall committee filed a notice of intent to recall with the New Jersey secretary of state. The secretary of state refused to begin the proceedings after determining that such efforts would violate the US Constitution [text]. The recall committee appealed the decision to the state appeals court, which determined that the recall was constitutional. In overturning the lower court's ruling, the Supreme Court examined the US Constitution and historical record surrounding ratification. The court held that, because the US Constitution explicitly set the requirements for a senator's term and manner of removal, states are preempted from enacting laws authorizing the recall of senators. In its ruling, the court also addressed the portion of the state statute allowing recall of local officials. The court held that recall at the local level is valid and recognized local recall as an important way to hold state and local officials accountable. A spokesman for Menendez indicated that the court's ruling is a victory against fringe groups [Star Ledger report] attempting to corrupt the political process. Lawyers for the recall committee have indicated they will appeal the decision to the US Supreme Court [official website; JURIST news archive].

The US Supreme Court has previously struck down state statutes attempting to place additional requirements or limits on federally elected officials. In 2001, the court ruled in Cook v. Gralike [materials] that a Missouri law requiring notice of a candidate's position on term limits to be placed on election ballots was a violation of the constitution. The court held that states have limited power related to federal elections under the Elections Clause [text], which primarily grants power to proscribe procedures for federal elections. In 1995, the court similarly struck down an Arkansas constitutional amendment placing term limits on federal offices in US Term Limits v. Thorton [materials]. The court held that states have no authority to "change, add to or diminish" the requirements enumerated in the Qualifications Clause [text].




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ACLU suing Michigan over life sentences for juveniles
Andrea Bottorff on November 18, 2010 12:23 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF] Wednesday in the US District Court for the Eastern District of Michigan [official website] against Michigan government officials, claiming that the state's juvenile sentencing laws are unconstitutional. The nine plaintiffs are adults who were sentenced to life without parole when they were minors. The rights group argues that sentencing children to lifelong prison sentences without the possibility of parole violates due process and constitutes cruel and unusual punishment [Cornell LII backgrounders] under the Fourth and Eighth Amendments, respectively. Deborah Labelle, a lawyer for the ACLU of Michigan, said [press release]:
These life without parole sentences ignore the very real differences between children and adults, abandoning the concepts of redemption and second chances. As a society, we believe children do not have the capacity to handle adult responsibilities, so we don't allow them to use alcohol, join the Army, serve on a jury or vote - yet we sentence them to the harshest punishment we have in this state - to die in adult prisons.
Under Michigan law, minors between ages 14 and 17 must be tried as adults if charged with certain felonies. If the minors are convicted, then judges lack sentencing discretion and must give mandatory life sentences without parole.

According to the ACLU, the US is the only country to sentence children to life in prison without parole. In May, the US Supreme Court [official website] held [opinion, PDF; JURIST report] in Graham v. Florida [Cornell LII backgrounder] that the Eighth Amendment [text] ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide offense. The court made a similar ruling in 2005 in Roper v. Simmons [Cornell LII backgrounder] that the constitution prohibits capital punishment in cases against juveniles.




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Federal appeals court dismisses Christian student group claim
Maureen Cosgrove on November 18, 2010 11:50 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday dismissed a claim [opinion, PDF] by the Christian Legal Society (CLS) [advocacy website] in which the student group argued that the University of California-Hastings School of Law [academic website] selectively applies its nondiscrimination policy to CLS. The court dismissed CLS's claim on the grounds that CLS had not raised the nondiscrimination policy issue in its opening brief:
CLS's hindsight attempt to string together an argument from quotes scattered throughout its opening brief confirms that it made no pretext argument at all, much less "specifically and distinctly." [...] But even after assiduously digging through CLS's opening brief, and carefully reviewing the passages CLS claims contain its pretext argument, we've found nothing reasonably supporting its existence.
CLS argued that it had preserved the selective application issue throughout arguments before the court. Hastings rejected [JURIST report] the local chapter's application for registered student organization (RSO) status because the CLS bylaws exclude students based on religion and sexual orientation. Hastings' RSO policy mirrors the state discrimination policy and mandates that RSOs must allow "all comers" to participate regardless of status or beliefs.

In June, the US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 5-4 in Christian Legal Society v. Martinez [Cornell LII backgrounder; JURIST report] that the "all comers" policy at Hastings, which limits funding to student organizations that adopt the school's nondiscrimination policy, is reasonable and viewpoint neutral and does not violate the First Amendment. CLS claimed that Hastings' refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion, and sought an exemption from the school's open-access requirement. The Supreme Court affirmed the circuit court's ruling, holding that Hastings' policy met these specifications under the school's educational mission, but limited its opinion to "all comers" policies at public institutions. In 2004, CLS became the first group to seek exemption from Hastings' nondiscrimination policy. CLS chapters exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the Statement of Faith, which all members are required to sign.




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UK prosecutor not charging intelligence officer over torture allegations
Drew Singer on November 18, 2010 11:27 AM ET

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[JURIST] A British intelligence officer accused of torturing a Guantanamo Bay [JURIST news archive] detainee will not be charged due to a lack of evidence, the country's public prosecutor announced on Wednesday. The MI5 [official website] officer was allegedly complicit in the abuse of Binyam Mohamed [BBC profile; JURIST news archive], causing him to falsely admit to terrorism charges. The US dropped all charges against Mohamed in 2008, and he was returned [JURIST reports] to Britain in 2009, after spending nearly seven years in detention, including four years at Guantanamo Bay. The prosecutor said investigations will continue of people higher up in the chain of command as well as MI6 [official website] officers. Earlier this week, the UK agreed to pay 16 former Guantanamo detainees, including Mohamed, a settlement [JURIST report] over claims that its agents colluded in torture abroad. The UK said that the settlement was not an admission of guilt.

The England and Wales Court of Appeal [official website] ruled [judgment text] in May that state intelligence agencies cannot use secret evidence [JURIST report] in their defense against abuse accusations by Mohamed and several other UK residents who were held at Guantanamo Bay. The judgment overturned a November ruling [judgment text; JURIST report] of a UK high court, which held that defendants MI5 and MI6 could utilize a "closed material procedure" that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. The procedure, typically employed in criminal proceedings, is designed to allow concealment of evidence where disclosure would cause "real harm to the public interest," harm the agencies argued would result if they were compelled to publicly adduce state intelligence as part of their defense.




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Madagascar faces coup attempt during constitutional referendum
Andrea Bottorff on November 18, 2010 10:59 AM ET

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[JURIST] Government officials in Madagascar [JURIST news archive] spoke Thursday with military officers who attempted a coup on Wednesday during the country's constitutional referendum. General Noel Rakotonandrasana allegedly led a group of about 20 soldiers into the capital city and tried to take control [NYT report] of government institutions and seize power from President Andry Rajoelina [official profile, in French; BBC profile] on the same day that citizens voted to amend the constitution. Thirty-six-year-old Rajoelina, who came to power [JURIST report] last year after a military coup, organized the national referendum [Guardian report] to change the president's minimum age requirement in Madagascar's constitution [text] from 40 to 35 years of age, so that he could run in the next presidential election. Former president Marc Ravalomanana [BBC profile], who was ousted last year by Rajoelina, supported the military action [AFP report] and saw it as an effort to promote democracy. The capital city has been operating normally as the soldiers stay nearby at a military base, despite threats [Reuters report] to take over the presidential palace and the international airport.

Madagascar has faced ongoing political unrest [Reuters timeline] for almost two years, and Rajoelina's regime has not been recognized by the international community. In August, a Madagascar court sentenced [JURIST report] Ravalomanana 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 overthrow 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. Ravalomanana has been convicted [JURIST report] three times since he left power, and his lawyer claimed that the trials have been politically motivated to keep him from returning to Madagascar and running for reelection. Earlier in August, the country's political parties gave proposed names [AFP report] for the country's next prime minister to Rajoelina and scheduled yesterday's constitutional referendum, parliamentary elections in March and a first round of presidential polls next May.




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France court orders review of same-sex marriage ban
Drew Singer on November 18, 2010 10:41 AM ET

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[JURIST] France's Court of Cassation, the country's highest court of appeals, on Tuesday ordered the nation's Constitutional Council [official websites, in French] to rule on whether the country's ban [French Civil Code text] on same-sex marriage conflicts with the constitution [text]. The order comes after a gay French couple challenged the ban in a Reims court, saying it limited their personal freedoms [AFP report]. Rights groups are optimistic that the ban will be overturned, as the trend in French law is moving towards equal rights among gay and straight couples. Last year, a French court ordered the country's government to extend adoption rights to a gay woman [JURIST report]. The court held that French adoption law [Article VIII French Civil Code], which currently allows single people to adopt children but bars same-sex partners from doing so, illegally discriminates [Le Monde report, in French] against homosexuals.

Courts both foreign and domestic are increasingly having to rule on the issue of gay marriage. In the US, judges in Wyoming and California [JURIST reports] have confronted the issue this year. Governments in Argentina, Kenya and Mexico [JURIST reports] are also addressing the issue. In 2007, the French Court of Cassation ruled that same-sex marriages are not valid under French law [JURIST report] and that marriage can only be between a man and a woman. The case arose in 2004 when Stephane Charpin and Bertrand Charpentier were married [JURIST report], after which both a local court and intermediate appeals court ruled that the marriage was invalid. State lawyers argued that it was not an issue for the courts to decide, but rather was a question to be answered by parliament.




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Ex-Guantanamo detainee acquitted on all but one charge
Jay Carmella on November 18, 2010 9:05 AM ET

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[JURIST] The first civilian trial of an ex-Guantanamo detainee ended on Wednesday with the jury convicting [FBI press release] Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] on only one of 285 counts of conspiracy, murder and attempted murder for his involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya. The jury in the US District Court for the Southern District of New York [official website] deliberated for five days before finding Ghailani guilty [WP report; video] of conspiracy to damage or destroy US property. The charge carries a minimum sentence of 20 years in prison and could result in a life sentence. A guilty verdict on only one of the 285 charges is somewhat of a blow to the Obama administration's hopes to try prominent terror suspects in federal court. The US Department of Justice [official website] released a brief statement [text] following the verdict indicating that they are pleased that Ghailani will face at least 20 years in US prison. Critics of the administration's desire to try terrorists in US courts view the result as proof that civilian courts are not the place [NYT report] for terrorists. Many cite to the judge's decision [JURIST report] to exclude testimony and a key government witness that came from confessions made during enhanced interrogation as an example of why civilian courts are not suited for terrorist trials.

Earlier in the week, a defense motion for mistrial was denied [JURIST report] after an anonymous juror's note was read in court, indicating that the juror was alone in her views and was being attacked for her conclusions. The juror requested to be removed or replaced. The trial began in October with opening statements [JURIST report]. In July, the judge ruled that Ghailani is not suffering from post-traumatic stress disorder (PTSD) and is fit to stand trial [JURIST report]. In June, Judge Lewis Kaplan denied a request from Ghailani to be exempt from prison strip searches, citing security concerns [JURIST report]. In May, Kaplan refused to dismiss criminal charges against Ghailani despite claims that he had been tortured in prison. Kaplan held that even if Ghailani was mistreated while in Central Intelligence Agency (CIA) [official website] custody, there was no connection between that and the current prosecution [JURIST report].




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Egypt blogger convicted of insulting Islam released
Dwyer Arce on November 17, 2010 2:32 PM ET

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[JURIST] Egyptian blogger Abdel Kareem Nabil [advocacy website] was released on Monday following four years of imprisonment on charges of insulting Islam and causing sectarian strife on his blog [website, in Arabic]. Nabil, a former law student, was convicted in 2007 [JURIST report] for posting statements critical of Islamic authorities and Egyptian President Hosni Mubarak [BBC profile], calling him a dictator. Nabil also allegedly called his university, Al-Azhar University [academic website, in Arabic], "the university of terrorism." Charges against him included inciting sedition, insulting Islam, harming national unity and insulting the president. Nabil's four-year sentence had ended on November 5, but he was held by authorities for 10 more days for unknown reasons. Following the expiration of his prison sentence, Amnesty International (AI) [advocacy website] called on Egyptian authorities to immediately investigate allegations of mistreatment [press release] and to explain the reasons for his continued detention. On Wednesday, Reporters Without Borders [advocacy website] praised his release [press release], criticizing Egyptian authorities for what the rights group described as poor conditions of his detention, "physical mistreatment" and torture. Egyptian authorities have yet to release a statement. Nabil's supporters have said that government repression and censorship have become more prevalent in recent years, as the US has let up political pressure for reforms. Nabil's case was the first in which a blogger has been charged with a crime.

The Egyptian government has faced ongoing criticism from international human rights groups for its treatment of prisoners. On Tuesday, AI called for Egyptian authorities to promptly and thoroughly investigate [JURIST report] the death of 19-year-old Ahmed Shaaban who was allegedly tortured in police custody. Sidi Gaber police officers are also currently under investigation for another incident in which a man was dragged out of a cafe and publicly beat to death [HRW report]. According to the US State Department's Human Rights Report for Egypt, in 2009, there were 30 reported instances of torture in police custody [DOS report]. Egyptian authorities investigated some of these, and, in several of the cases, punished the responsible officers and made them pay compensation to the victims. In 2008, it suspended 280 police officers [JURIST report] alleged to have abused their power and committed human rights violations.




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ICC prosecutor says court will not use testimony of allegedly bribed Kenya witnesses
Sarah Miley on November 17, 2010 2:14 PM ET

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[JURIST] International Criminal Court (ICC) chief prosecutor Luis Moreno-Ocampo [official websites] said Wednesday that the court will not use testimony from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. Ocampo also said that the ICC is looking into additional claims [CP report] of witness intimidation and bribery. While Ocampo did not name the politician in his report, the statement was most likely in reference to former Cabinet minster William Ruto. Last week, the Kenya National Commission on Human Rights (KNCHR) [advocacy website] accused [JURIST report] Ruto of interfering with the ICC investigation into the 2007 post-election violence [JURIST news archive], denying accusations of bribing witnesses. Two witnesses, Ken Braziz Wekesa and William Kepkemboi Rono, claimed earlier that week that they were bribed by the KNCHR [Daily Nation], a government-funded human rights group, to testify to the ICC against Ruto. Rono and Wekesa claimed they were bribed by KNCHR commissioner Hassan Omar Hassan [KNCHR profile] with money, entry into safe houses and an eventual promise to be moved out of Kenya. The KNCHR, admitting they housed the prospective witnesses [Daily Nation], requested an investigation into Ruto's influence on the witnesses to change their testimonies. The KNCHR also wants the police to arrest Wekesa and Rono and charge them with perjury. Although the two witnesses gave statements to the ICC, they were not slated to testify at the tribunal.

The ICC announced last month that it would present two cases against the six individuals most responsible for causing the post-election violence, down from the initial 20 officials [JURIST reports] the ICC prosecutor initially accused. It has not been revealed if Ruto will be among those charged, although he was implicated in the initial report on the violence [text, PDF] compiled by the KNCHR. In September, a businessman challenged the legality of the ICC investigation, claiming it was made illegal by Kenya's recently ratified constitution [JURIST reports]. However, Justice and Constitutional Affairs Minister Mutula Kilonzo [official website], said the government supports the investigation [JURIST report]. The ICC began conducting an investigation in March after the Kenyan parliament rejected [JURIST reports] conducting their own in February. The Kenyan presidential election of 2007 [JURIST report] left at least 1,000 people dead and 500,000 displaced in Kenya after protests erupted from allegations that President Mwai Kibaki [official profile] committed voter fraud.




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Suu Kyi seeks reinstatement of opposition party
Sarah Miley on November 17, 2010 1:09 PM ET

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[JURIST] Pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] filed a petition with Myanmar's High Court on Tuesday seeking to reinstate her opposition party, the National League for Democracy (NLD) [party website]. Myanmar's military government formally abolished [BBC report] the NLD in May for failing to register for elections, which took place earlier this month. Suu Kyi had filed an appeal while under house arrest for the dissolution of her party under a controversial election law [JURIST reports]. Suu Kyi asked the court to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also to establish a parliament of lawmakers who won in the 1990 elections. Suu Kyi originally filed suit with the court in April, but her claim was rejected [JURIST report]. The dissolution was seen as political move by the military government in order to keep the NLD from participating in Myanmar's 2010 elections, the first in 20 years.

Suu Kyi's visit to the High Court marked her first visit to Rangoon since the Myanmar Police Force [official website] released [JURIST report] her on Saturday after almost eight years of house arrest. Her release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest. Though the challenge was originally scheduled to be heard in October, the court waited until after the controversial elections [JURIST report] to issue its ruling. It is anticipated that Suu Kyi will assist in a challenge [AP report] against the election results in which the ruling party maintained its hold on power, but the military government has warned [Telegraph report] against any kind of action by the opposition.




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Iraq president refuses to approve execution of ex-foreign minister
Ashley Hileman on November 17, 2010 12:25 PM ET

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[JURIST] Iraqi President Jalal Talabani [BBC profile; JURIST news archive] said in an interview [video] Wednesday that he will not sign the execution order for former foreign minister Tariq Aziz [BBC profile; JURIST news archive]. Aziz, who served in the government of Saddam Hussein [JURIST news archive] as both the foreign minister and deputy prime minister, was sentenced to death [JURIST report] last month by the Iraqi High Criminal Court. The sentence was rendered on charges that Aziz, while serving in his governmental roles, was involved in the persecution of various Iraqi religious parties. In the interview, in which Talabani also answered questions regarding the recent formation of a new government [JURIST report], he cited his political beliefs as the main justification underlying his refusal to sign the execution order. He stated, "I will not sign the order to execute Tariq Aziz, I cannot sign an order of this kind because I'm a socialist, I feel compassion for [him]."

Aziz is currently serving a 15-year sentence [JURIST report], which is the result of a prior conviction in March 2009. However, the death sentence based on this most recent conviction cannot be carried out in the absence of the approval of the Presidency Council.

In July, the US transferred 26 Saddam-era Iraqi officials [JURIST report], including Aziz, from Camp Cropper [JURIST news archive] to the Iraqi-controlled Kadhimiya prison in Baghdad. That month, Aziz was also charged with additional crimes alleged to have occurred during Hussein's regime, with his lawyer contending that the current Iraqi government was attempting to find a reason to execute him. Aziz's family has called for his release on health grounds, based on claims he has had two heart attacks in addition to having suffered a stroke [JURIST report] in January. In August 2009, Aziz was convicted of forcing Kurdish displacement [JURIST report] from northeast Iraq during the late 1980s, and was sentenced to seven years in prison. Prior to his March conviction for the 1992 murders of 42 merchants accused of price-gouging during a period of UN-imposed sanctions, Aziz was acquitted of charges [JURIST report] in connection with the 1999 killing of protesters who rioted in Baghdad and Amarah following the alleged assassination of Grand Ayatollah Mohammed Sadiq al-Sadr.




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Kyrgyzstan court begins trial of ousted president
Andrea Bottorff on November 17, 2010 10:58 AM ET

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[JURIST] Trials began Wednesday in Kyrgyzstan for former president Kurmanbek Bakiyev [BBC profile; JURIST news archive] and his administration officials who have been charged with mass murder. The charges stem from an April 7 incident [JURIST report] in which police fired on a crowd of anti-government demonstrators, killing more than 85 people. The crowd eventually overwhelmed security forces, ultimately overtaking the Kyrgyz government and forcing Bakiyev into exile. Families of the victims held an angry demonstration [Reuters report] during the trial in the capital city of Bishkek, calling for the accused men to be punished. Human rights activists in the country have argued that the accused men will not receive a fair trial [BBC report] because of prevalent bias. Bakiyev, who now lives in Belarus and will be tried in absentia, maintains that police only shot at the protesters after the crowd began firing on Kyrgyz government headquarters. Kyrgyzstan's interim government, led by Roza Otunbayeva [Telegraph profile], charged [JURIST report] Bakiyev with murder in April. Otunbayeva has pledged [JURIST report] to bring Bakiyev and other members of the former government to justice.

The country's new parliament, elected last month amid ongoing unrest, held its first assembly last week [VOA report] and discussed the possibility of a coalition government. Last month's parliamentary elections were the first since a new constitution took effect in July after being approved by voters [JURIST reports] in a nationwide referendum. In September, a court in Kyrgyzstan issued the first convictions [JURIST report] in connection with the June 2010 ethnic violence [Guardian backgrounder; JURIST news archive] against Uzbeks in primarily the southern cities of Osh and Jalal'abad. The conflict is believed to have been linked to Bakiyev's overthrow. In August, Human Rights Watch (HRW) [advocacy website] reported [text, JURIST report] that Kyrgyzstan armed forces played a role in instigating and at times taking part in the attacks against ethnic Uzbeks. The group 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.




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Hungary Parliament restricts Constitutional Court's powers
Ann Riley on November 17, 2010 8:57 AM ET

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[JURIST] The National Assembly of Hungary passed a bill on Tuesday limiting the jurisdiction of the Constitutional Court [official websites, in Hungarian] on state budget and taxation matters. The law, which passed 261-103, eliminates the court's ability to examine the recent "crisis taxes" imposed on banks, energy companies, foreign retail and telecommunication firms. Once the law is signed by President Pal Schmitt [EP profile], the court will only be able to invalidate tax and budget legislation if it infringes on basic human rights like the right to privacy and the freedom of thought, conscience and religion. Critics argue that the legislation threatens democratic freedoms. The Hungarian Civic Party (FIDESZ) [party website, in Hungarian] controlled legislature decided to restrict the power of the court after it issued a decision last month striking down a 98 percent retroactive tax [press release, in Hungarian] on public severance payments.

Hungary faces a growing budget deficit and is on the verge of a severe economic crisis. The National Assembly is currently debating the 2011 budget and adopted the series of unconventional taxes and budget policies in order to conform to the EU's Excessive Deficit Procedure for Hungary [materials]. The Fiscal Council of Hungary [official website, in Hungarian] forecasts that the "crisis taxes" [No. T/1374] are expected the increase budget revenues [report, in Hungarian] and satisfy the Pay-As-You Go rule. Without the "crisis taxes" Hungary would not be able to meet next year's budget deficit target of less than 3 percent GDP. In 2007, the Constitutional Court ruled in favor [JURIST report] of a proposed referendum on unpopular economic reform proposals advanced by former prime minister Ferenc Gyurcsany [BBC profile]. The high court ruling reversed a prior ruling by the National Election Committee [official website], which barred the referendum on the grounds that it would have affected the budget in violation of Article 28C-5a of the Hungarian Constitution [text].




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Guinea presidential candidate to challenge election in court
Daniel Richey on November 17, 2010 7:37 AM ET

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[JURIST] Guinean presidential candidate and former prime minister Cellou Dalein Diallo announced Monday that he would take to the Supreme Court to challenge his defeat [press release, in French] in the West African nation's November 7 runoff election. The election, Guinea's first since it gained independence from France in 1958, took place amid ethnic clashes [AP report] between the country's two major ethnic groups, the Malinke and the Peul Although election supervisors said the vote was largely peaceful, more civil unrest followed [Reuters report] when it was announced that opposition leader Alpha Conde of the Rally of Guinean People (RPG), a Malinke, had won with 52.5 percent of the vote. Shortly thereafter, Diallo, a Peul and the head of the Union of Democratic Forces of Guinea (UDFG) [party website, in French] declared himself the winner [press release, in French]. Now Diallo is alleging that the election was the result of "fraud on a massive scale" in the runoff, including "computer manipulation" of votes, ballot stuffing and systematic suppression and intimidation of ethnic Peuls in UDFG stronghold districts. UN Secretary-General Ban-Ki Moon Monday urged the people of Guinea to accept the election results [press release] and "resolve any differences through legal means." He also "call[ed] on the international community to provide Guinea with concrete support as the country embarks on a new phase towards peace, consolidation and development" and congratulated the nation on its first "peaceful, orderly" democratic transfer of power.

November's election ended two years of military rule under a transitional government formed by military captain Moussa Dadis Camara [BBC profile], who staged a coup in the wake of the death of former president Lansana Conte [Guardian profile], the nation's ruler for 24 years. In September, two Guinean election officials were convicted of election fraud [JURIST report] and sentenced to a year in jail in connection with irregularities that arose in the June presidential primary election, one incident in a string of controversies responsible for multiple delays of the runoff, which was initially scheduled for July [Reuters report]. In May, the International Criminal Court (ICC) sent a delegation from the Office of the Prosecutor (OTP) [official websites] to Guinea to further investigate the killing [JURIST report] of more than 150 pro-democracy protesters in Conakry [BBC backgrounder] in September 2009. The protesters had rallied against Camara, who announced in October that he intended to push elections forward three months and stand for election, breaking a promise not to run made shortly after he took power. Camara was ultimately forced into exile two months later after being shot in the head in an assassination attempt staged by one of his aides.




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Rights group urges Egypt to investigate death of man allegedly tortured in police custody
Sarah Paulsworth on November 16, 2010 3:34 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] called Tuesday for Egyptian authorities to promptly and thoroughly investigate [press release] the death of 19-year-old Ahmed Shaaban who was allegedly tortured in police custody. Shaaban went missing from his hometown in Alexandria, Egypt, on November 7 and was found dead in a canal near where he lives on November 11. According to Ahmed Shaaban's family, his body was covered in bruises. They accuse police officers from Sidi Gaber police station of torturing and killing Shaaban. According to AI, the family received an anonymous phone call one day after Shaaban went missing saying they he was in custody at Sidi Gaber and being subjected to torture. "These disturbing allegations of enforced disappearance and death in custody, and possibly unlawful killing by police, must be immediately and fully investigated by an independent body," said Malcolm Smart, AI's director for the Middle East and North Africa. Egypt's Ministry of Interior denies [AP report] the Shaaban family's accusations and says they have no record of Shaaban being arrested. However, reports have surfaced that Shaaban and his friend Ahmed Farraq Labib were accused of stealing a mobile phone [EGY News report, in Arabic] on the day that Shaaban went missing. Labib is currently in police custody at Sidi Gaber.

Sidi Gaber police officers are also currently under investigation for another incident in which a man was dragged out of a cafe and publicly beat to death [HRW report]. According to the US State Department's Human Rights Report for Egypt, in 2009, there were 30 reported instances of torture in police custody [report]. Egypt investigated some of these, and, in several of the cases, punished the responsible officers and made them pay compensation to the victims. In 2008, Egypt suspended 280 police officers [JURIST report] alleged to have abused their power and committed human rights violations.




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Federal judge denies motion for mistrial in ex-Guantanamo detainee trial
John Paul Putney on November 16, 2010 2:34 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Monday denied a defense motion for mistrial in the trial of ex-Guantanamo Bay detainee Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive]. The motion came after an anonymous juror's note was read in court, indicating that the juror was alone in her views and was being attacked for her conclusions [NYT report]. The juror requested to be removed or replaced. The note came on the third day of deliberations in the high-profile case, which is the first of the Obama administration's attempts to try prominent terror suspects in federal court [LAT report]. Judge Lewis Kaplan denied the juror's request and instructed the jury to continue their deliberations. In denying the motion, Kaplan noted that it was unrealistic to expect a unanimous verdict so soon [Bloomberg report] given the size of the trial record, which has swelled to 2,200 pages with hundreds of pieces of evidence.

Ghailani faces charges for his alleged involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya. The trial began in October with opening statements, following a delay when Kaplan barred key US government witness [JURIST reports] Hussein Abebe from testifying. In July, Kaplan ruled that Ahmed Ghailani is not suffering from post-traumatic stress disorder (PTSD) and is fit to stand trial [JURIST report]. In June, Kaplan denied a request from Ghailani to be exempt from prison strip searches, citing security concerns [JURIST report]. In May, Kaplan refused to dismiss criminal charges against Ghailani despite claims that he had been tortured in prison. Kaplan held that even if Ghailani was mistreated while in Central Intelligence Agency (CIA) [official website] custody, there was no connection between that and the current prosecution [JURIST report].




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UK government settles with 16 Guantanamo detainees over torture allegations
Julia Zebley on November 16, 2010 2:27 PM ET

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[JURIST] The UK government on Tuesday announced a settlement with 16 Guantanamo Bay [JURIST news archive] detainees over allegations of torture. Details of the settlement agreement, which are legally bound to a confidentiality agreement, have not been released, although at least seven detainees are expected to receive compensation, with at least one recieving over one million pounds [AP report]. In return, the 16 detainees—12 of whom had filed suit and four of whom were planning to—agreed to drop a lawsuit [JURIST report] against MI5 and M16 [official websites], Britain's domestic and overseas intelligence agencies, respectively. Although many of the detainees receiving settlement are British citizens, some are not and may be offered asylum as part of the settlement. At least one is still detained in Guantanamo Bay. Justice Secretary Kenneth Clark [official profile] made a statement to the House of Commons Tuesday afternoon, clarifying that the settlement was not an admission of guilt:

A joint statement [text] by the heads of M15 and M16, "welcome[d] the conclusion to the mediation which allows the agencies to concentrate on protecting national security." Prime Minister David Cameron [official website] is expected to comment on the settlement later Tuesday.

The British government has not shied away from the Guantanamo Bay controversy, launching an investigation into torture allegations in May, as well as ruling that state intelligence agencies cannot use secret evidence [JURIST reports] in their defense against abuse. This issue came up in the ongoing case of Binyam Mohamed [JURIST news archive], a British citizen formerly detained in Guantanamo Bay who is thought to be included in the settlement. Mohamed was returned to the UK in February 2009 after charges against him were dismissed [JURIST reports] in October 2008. Mohamed had been held at Guantanamo Bay for four years on suspicion of conspiracy to commit terrorism [JURIST report].




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Federal appeals court upholds New Hampshire school Pledge of Allegiance law
Sarah Posner on November 16, 2010 1:31 PM ET

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[JURIST] The US Court of Appeals for the First Circuit [official website] ruled [opinion, PDF] Friday that a New Hampshire law requiring schools to schedule voluntary recitation of the Pledge of Allegiance is constitutional. The Freedom From Religion Foundation (FFRF) [advocacy website], its members Jan and Pat Doe, and their three children, who are students at New Hampshire public schools, brought the lawsuit against the US government, the Hanover and Dresden school districts and the School Administrative Unit. The suit challenged the 2002 New Hampshire School Patriot Act [text], which requires schools to authorize a time during the day for the voluntary recitation of the Pledge of Allegiance. FFRF claims that the recitation of the pledge in New Hampshire's public schools violates the Establishment Clause, Free Exercise Clause, Equal Protection Clause,p and Due Process Clause of the US Constitution [Cornell LII backgrounder], as well as the New Hampshire Constitution and federal and state law. Upholding the law, Chief Judge Sandra Lynch wrote:
In reciting the Pledge, students promise fidelity to our flag and our nation, not to any particular God, faith, or church. The New Hampshire School Patriot Act's primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation.
The appeals court's ruling affirms a 2009 district court ruling. Plaintiffs were represented by atheist Michael Newdow [JURIST news archive], who plans to request a rehearing [AP report] by the full First Circuit.

Other federal courts have also upheld similar state laws. In October, the US Court of Appeals for the Fifth Circuit [official website] ruled [JURIST report] that the words "one state under God" in the Texas Pledge of Allegiance do not violate the First Amendment. In March, the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that teacher-led recitation of the pledge in public schools does not violate the constitution. In 2008, the US Court of Appeals for the Eleventh Circuit [official website] upheld [JURIST report] part of a Florida law that requires students in grades kindergarten through 12 to obtain parental permission in order to be excused from reciting the Pledge of Allegiance.




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Thailand extradites accused Russia arms dealer to US
Maureen Cosgrove on November 16, 2010 12:33 PM ET

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[JURIST] The Thai government on Tuesday extradited alleged Russian arms dealer Viktor Bout [BBC profile; JURIST news archive] to the US to stand trial. The Thai Cabinet [official website, in Thai] approved the extradition [Bangkok Post report] and handed Bout over to US law enforcement officials for immediate departure to the US. Bout has been fighting extradition since 2008 when he was arrested and accused of running an arms trafficking network in South America, Africa and Afghanistan. Upon arrival in the US, Bout faces charges stemming from a 2008 indictment [text, PDF] for selling weapons to a terrorist group and conspiring to kill US nationals. The Russian Foreign Ministry [official website, in Russian] opposes the extradition [press release], claiming political motivation fueled the Thai government's decision:
There is no doubt that the illegal extradition of Viktor Bout is a consequence of the unprecedented political pressure exerted by the United States on the government and judicial authorities in Thailand. All this can only be characterized as interference in the administration of justice and calls into question the independence of Thailand's judicial system and of decision making by the Thai authorities.
The Russian government maintains that Bout is innocent. If convicted in the US, Bout faces a maximum sentence of life in prison.

In October, the Bangkok Criminal Court paved the way for Bout's extradition to the US when it dismissed money laundering and fraud charges [JURIST report] against him. In an attempt to avoid extradition to the US, Bout appealed the decision [JURIST report], requesting that the charges be reinstated. In August, a Thai appeals court ruled that Bout must be extradited [JURIST report] to the US within three months or be released from Thai custody. The court's decision overturned a ruling by the Bangkok Criminal Court in August 2009, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. Bout has been in Thai custody since he was arrested [Interpol press release] in a joint operation carried out by US and Thai authorities in which Bout allegedly sought to sell arms to Revolutionary Armed Forces of Colombia (FARC) [CFR backgrounder].




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US House votes to ban animal cruelty videos
Eryn Correa on November 16, 2010 11:29 AM ET

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[JURIST] The US House of Representatives [official website] voted Monday to ban animal cruelty or crush videos, revising the 1999 legislation [18 USC § 48 text] that was struck down by the US Supreme Court [official website; JURIST news archive] in April. The Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 [HR 5566 text, PDF] maintains that creating, selling or distributing animal crush videos, which feature small animals being tortured or killed, is a crime punishable with up to five years in prison.The revised legislation more narrowly defines what constitutes a crush video, excluding videos depicting "customary and normal veterinary or agricultural husbandry practices," as well as videos of hunting, fishing or trapping. Originally passed by the House in July, the Act slightly alters the language approved by the Senate in September and will now go back for reconsideration.

The House was forced to revise the Act following the Supreme Court's decision in United States v. Stevens, in which the 1999 law was struck down [JURIST report] for being substantially overbroad and therefore in violation of the First Amendment [text]. Legislators hope that the new amendments to the law will afford it greater enforceability and staying power in their efforts to ban crush videos. Following the Supreme Court's decision, animal rights activists focused on the narrowness of the ruling, as well as the dissent, and called on [JURIST comments] Congress to revise the law.




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California high court rules illegal immigrants eligible for in-state tuition
Carrie Schimizzi on November 16, 2010 9:42 AM ET

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[JURIST] The California Supreme Court [official website] ruled [opinion, PDF] unanimously Monday that illegal immigrants are eligible to receive in-state tuition benefits at California's public colleges and universities. The plaintiffs in the class action suit, brought by the Immigration Reform Law Institute (IRLI) [advocacy website], had alleged [complaint, PDF] that an exemption in California Education Code section 68130.5(a) [text] violates § 1623 of the Immigration and Nationality Act [8 USC § 1623(a)], which prohibits states from allowing illegal immigrants to receive postsecondary education benefits on the basis of residence unless citizens of the US are eligible to receive the same benefits without regard to residency status. § 68130.5(a) provides an exemption for nonresidents attending California colleges and universities who attended a California high school for at least three years. Justice Ming Chin, writing for the majority, held that § 68130.5(a) does not violate Federal Immigration law due to the fact that the exemption is not based on formal legal residency:
Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.
Illegal immigrants will remain ineligible to receive state or federal financial aid benefits. Kris Kobach, counsel for IRLI says he will appeal the case [Reuters report] to the Supreme Court.

The IRLI lawsuit was one among many immigration suits currently pending across the country. Last month, a judge for the US District Court for the District of Arizona [official website] denied motions to dismiss a class action lawsuit [JURIST reports] challenging the constitutionality of the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. Under the law, it is designated a crime to be in the country illegally, and immigrants unable to verify their legal status could be arrested and jailed for six months and fined $2,500. In September, the US Court of Appeals for the Third Circuit [official website] ruled that two ordinances passed by the city of Hazleton, Pennsylvania, making it more difficult for illegal immigrants to live or work in the town are unconstitutional [JURIST report].




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Lebanon police arrest radical Muslim cleric convicted of terrorism
Zach Zagger on November 16, 2010 8:08 AM ET

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[JURIST] Lebanese authorities on Monday arrested Syrian national and radical Muslim cleric, Omar Bakri Mohammed, less than a week after he was convicted of terrorism by a military court. Bakri was after a gunfire riddled car chase arrested [LAT report] in the northern city of Tripoli where he had been living. He was convicted in absentia [JURIST report] last week for belonging to an armed group that carried out terrorist acts against Lebanese soldiers in 2007 and was sentenced to a life term. He claims that he never received a summons or an arrest warrant and had refused to turn himself in. Bakri is known for having praised the 9/11 hijackers as "the magnificent 19" and practices the same sect of Sunni Muslim as Osama bin Laden. He has been living in Lebanon since 2005 where US security experts fear that terrorist supports have found refuge amongst the Lebanese Sunni population.

Bakri was living openly in Lebanon appearing regularly on television and talking with Western journalists. He previously lived in the UK for 20 years until he fled to Lebanon in 2005 after being named in an investigation by British authorities for allegedly making remarks in support of the London bombers [JURIST reports]. Bakri also reportedly praised insurgents in Iraq and Afghanistan while vowing not to inform authorities of any information he learned about future terrorist attacks. In 2005, he denied talking about the bombings and said he planed to return to London. While living in Britain, Bakri headed the now-dissolved Islamist group al-Muhajiroun.




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Bosnia authorities arrest Srebrenica war crimes suspect
Zach Zagger on November 16, 2010 7:01 AM ET

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[JURIST] A suspected Bosnia and Herzegovina (BiH) war criminal was arrested [press release] Monday in connection with the 1995 Srebrenica massacre during the end of 1992-95 Bosnian civil war [JURIST news archives]. The Prosecutors Office for BiH [official website] announced that Dragan Crnogorac was arrested in the city of Banja Luka on suspicion for having committed genocide under Article 171 of the BiH criminal code [text, PDF]. Crnogorac was a police officer who is alleged to have shot Bosnian Muslim men and boys [CP report] after the town of Srebrenica fell in July 1995. More than 8,000 men were killed in what is the worst massacre since the Nazi era. The war crimes division of the Prosecutors Office will conduct the questioning and then decide whether to further pursue the case.

In August, Spanish officials extradited accused Montenegrin war criminal [JURIST report] Veselin Vlahovic, known as the "monster of Grbavica," to Sarajevo. He is wanted on three international arrest warrants, including one for the rape, torture and murder of more than 100 women and children and is expected to face genocide charges before the country's war war crimes court [official website], established in 2005 to assist the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Also in August, the court issued genocide charges against four former Bosnian Serb soldiers in connection with the 1995 Srebrenica massacre alleging that they 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 April, the court convicted two men of genocide, Radomir Vukovic and Zoran Tomic, for their roles in the Srebrenica massacre and sentenced each to 31 years imprisonment.




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Supreme Court takes two criminal cases
Matt Glenn on November 15, 2010 3:53 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in two cases. In Tolentino v. New York [docket], the court will determine whether the exclusionary rule [Cornell LII backgrounder] prohibits police from using a defendant's driving record compiled by the state's Department of Motor Vehicles obtained after illegally stopping the defendant. The Court of Appeals of New York [official website] held [opinion, PDF] that the exclusionary rule does not bar police from using evidence that a driver had his license suspended 10 previous times after police allegedly illegally stopped the vehicle. Relying heavily on INS v. Lopez Mendoza [opinion text], the court reasoned that since a defendant's identity is never subject to exclusion, information obtained only through learning his identity, such as his driving record, is not subject to exclusion either.

In Fowler v. United States [docket], the court will determine the federal nexus required to convict a defendant under 18 USC § 1512(a)(1)(C) [text], which prohibits killing or attempting to kill a person with the intent to "prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings." The US Court of Appeals for the Eleventh Circuit [official website] ruled [opinion, PDF] that Charles Fowler violated the statute by killing a police officer who had stopped Fowler and his accomplices who were planning a bank robbery in a stolen vehicle containing drugs and who had recently committed an interstate robbery. Fowler protested that prosecutors failed to establish that it was likely the officer would transfer information to federal investigators or that it was likely that a federal investigation would be opened. The court held, however, that prosecutors need only establish that the defendant killed the victim to prevent the communication of a possible federal offense and that they had met that burden.

Also Monday, the court refused to dismiss the writ of certiorari in Kentucky v. King [docket, cert. petition, PDF] as improvidently granted. The court will determine when lawful police action impermissibly "creates" exigent circumstances that preclude warrantless arrest. The case was appealed from the Supreme Court of Kentucky [official website] to determine which of the five tests currently being used by US circuit courts should be used to determine this issue. The Kentucky court held [opinion, PDF] that the officers were not in hot pursuit of a fleeing criminal and, therefore, the exigent circumstances used to validate the warrantless arrest were self-created. The court originally granted certiorari [JURIST report] in September, and the respondent had sought a dismissal because the charges against him were dropped since review was granted.




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Supreme Court upholds additional minimum sentences in gun cases
Matt Glenn on November 15, 2010 2:42 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] unanimously in Abbot v. United States [Cornell LII backgrounder] that, in construing a federal statute imposing mandatory minimum sentences for drug trafficking crimes committed with guns, the minimum sentence contained in the statute applies unless another statute imposes a longer minimum sentence for the weapons charge. Defendants argued that their respective 15- and 20-year prison sentences were not dictated by 18 USC § 924(c) [text], which provides that "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm" shall be sentenced to no less than five years in prison in addition to any sentence for the underlying crime. Both defendants received five-year extensions to their additional sentences of 10 and 15 years for carrying guns while committing crimes involving drug trafficking. They argued that the trial courts failed to apply the "except" clause of § 924(c), which makes the provision applicable, "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." The defendants argued that the "except" clause should apply if any of the charges on which they were convicted or charges on which they were convicted stemming from the criminal transaction carried a longer minimum sentence. The court, rejecting that argument, agreed with the government that the "except" clause applies only "if another provision of the United States Code mandates a punishment for using, carrying, or possessing a firearm in connection with a drug trafficking crime or crime of violence, and that minimum sentence is longer than the punishment applicable under § 924(c)." The court explained:
We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction. Under the "except" clause as we comprehend it, a § 924(c) offender is not subject to stacked sentences for violating § 924(c). If he possessed, brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22. He is, however, subject to the highest mandatory minimum specified for his conduct in § 924(c), unless another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.
The court noted that Congress passed the current version of § 924(c) to increase penalties for crimes committed with guns and that the defendants' construction of the law would decrease sentences compared to the previous version of the statute. Justice Elena Kagan did not participate in the case.

The court heard oral arguments [transcript, PDF; JURIST report] in October when it opened its current session. In July 2009, the US Court of Appeals for the Fifth Circuit [official website], held, in an unpublished opinion [text, PDF], that the trial court properly applied § 924(c) to Carlos Gould who pleaded guilty to conspiracy to possess with intent to distribute cocaine base and possession and possession of a firearm in furtherance of a drug trafficking crime. In February 2009, the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that the trial court correctly applied § 924(c) in sentencing Kevin Abbot to twenty years in prison after police arrested him during a 2004 raid on an abandoned property that contained drugs, drug paraphernalia and two handguns.




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Leaked DOJ report reveals Nazi 'safe havens' in US
Ann Riley on November 15, 2010 1:22 PM ET

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[JURIST] A report [text] revealing that US intelligence officials knowingly allowed Nazis to settle in US "safe havens" [NYT report] after World War II was released Saturday by the New York Times after being leaked by former Department of Justice (DOJ) [official website] officials. The 600-page report describes the actions of the DOJ's Office of Special Investigations (OSI), created in 1979 to deport Nazis, and documents cases of Nazis who were aided by US officials. According to the report, Nazi persecutors gained entry to the US even though government officials were aware of their backgrounds. Senior DOJ lawyer Mark Richard, responsible for editing the final version, convinced then-attorney general Janet Reno [official profile] to commission the report in 1999. Although Richard urged senior officials to make the report public until his death, the DOJ has resisted releasing the report since 2006. Director of the National Security Archive [official website] Tom Blanton, said:
Embarrassment suffered by public officials is the price they pay for public power. It goes with the territory, but here, their coverup is not nearly as bad as the crime, which was to shelter Nazi war criminals in the name of national security. This the public needs to know and has a right to know.
In November 2009, the National Security Archive submitted [press release] a Freedom of Information Act (FOIA) [5 USC § 552 text] request [text, PDF] for the history of the OSI. The DOJ denied the request [text, PDF] on the grounds that the report fell under exemptions to the FOIA as it was a deliberative and pre-decisional document that was never finalized or approved by the assistant attorney general. The National Security Archive appealed [text, PDF] the decision and, in May 2010, subsequently filed suit [complaint, PDF] in the US District Court for the District of Columbia [official website]. Under the threat of a lawsuit, the DOJ then released a redacted version [text, PDF] of the document.

While more than 300 Nazi persecutors have been deported, stripped of citizenship or denied entry to the US since the creation of the OSI, the Holocaust continues to affect today's legal world. In May, a German court denied a motion to dismiss [JURIST report] charges against alleged Nazi war criminal John Demjanjuk [NNDB profile, JURIST news archive]. A year earlier, the US Supreme Court [official website] denied an application for stay of deportation [JURIST report] filed by Demjanjuk, who faces 27,900 accessory accounts stemming from his alleged involvement as a guard at Sobibor [Death Camps backgrounder] concentration camp. Also this May, the DOJ announced that the Philadelphia Immigration Court [official website] had ordered the deportation [JURIST report] of former SS guard Anton Geiser to Austria for serving as an armed guard at the Sachsenhausen and the Buchenwald concentration camps during World War II. In April, the Regensburg District Court in southern Germany convicted British Bishop Richard Williamson [JURIST report] of incitement for denying the Holocaust and ordered him to pay a 10,000 euro fine. In March, a German court sentenced [JURIST report] former Nazi SS member Heinrich Boere to life in prison for the 1944 murders of three Dutch civilians. In August, a German district court sentenced [JURIST report] former Nazi army officer Josef Scheungraber to life in prison for the 1944 reprisal killing of 10 Italian civilians.




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Rights group urges EU to hold nations accountable for CIA rendition programs
Ashley Hileman on November 15, 2010 12:29 PM ET

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[JURIST] The EU has failed to hold member states legally accountable for their involvement in the US Central Intelligence Agency (CIA) [official website] extraordinary rendition program [JURIST news archive], according to a report [text, PDF] published Monday by Amnesty International (AI) [advocacy website]. In its report, entitled "Open Secret: Mounting Evidence of Europe's Complicity in Rendition and Secret Detention," AI said that limited progress has been made in holding governments accountable, mostly as a result of mounting evidence of certain states' involvement in activities, including hosting secret prisons, allowing the US to use their territories for abduction and rendition, and interrogating individuals under torture. AI said that further progress toward genuine accountability, achieved by bringing perpetrators to justice and providing redress for victims, is most often impeded by the "need" for "state secrecy" in order to protect national security. According to the report, however:
European governments have an opportunity now to recommit to a human rights machinery at the national level that works to end impunity, not perpetuate it. The fact that European states colluded in such egregious violations - illegal transfers, secret detention, and torture and ill- treatment; crimes under international law, in fact - is sobering.
The report concludes with AI stating that, while states hold a duty to protect their populations from violent attack, Europe should not be turned into an "accountability-free zone."

Last month, the European Court of Human Rights (ECHR) [official website] announced [JURIST report] that it would review the involvement of the Former Yugoslav Republic of Macedonia in the extraordinary rendition and torture of Khaled El-Masri [JURIST news archive] by the CIA. In 2003, on orders from the US, Macedonian authorities seized El-Masri, a German citizen of Lebanese descent, while he was traveling in Macedonia and held him incommunicado for 23 days. He was then handed over to the CIA and transported to a secret detention facility in Afghanistan where he was held for four months in allegedly inhumane conditions, interrogated and abused. In September, Polish prosecutors announced [JURIST report] that they would investigate the alleged mistreatment of accused USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri at a secret CIA prison in Poland. The investigation was in response to a request [JURIST report] filed by human rights group Open Society Justice Initiative (OSJI) [advocacy website] and al-Nashiri's lawyers. The request asked prosecutors to scrutinize al-Nashiri's detention and treatment as part of 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.




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Cuba releases first dissident prisoner refusing exile bargain
LaToya Sawyer on November 15, 2010 11:47 AM ET

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[JURIST] Cuban officials on Saturday released the first of 13 dissident prisoners who refused to go into exile as part of an agreement [JURIST report] reached between Cuba, Spain, and the Vatican. The prisoner, Arnoldo Ramos Lauzurique, was one of 52 prisoners captured as part of a 2003 tightening on dissent within the country. Of those 52 individuals, 39 agreed to go into exile in Spain. Ramos, however, is one of 13 dissidents who refused to take the deal [AP report], therefore delaying his release. Last week, the advocacy group Ladies in White [advocacy website, in Spanish] composed of the wives of imprisoned dissidents, petitioned Pope Benedict XVI [official profile] for the release of the 13 prisoners as the four-month deadline agreed by the government expired, although no specific date [Reuters report] of release was given. Another of the prisoners, Luis Enrique Ferrer, is set to be released soon [CNN report], but, unlike Ramos, will go into exile in Spain. The Cuban government has also agreed to release 14 more prisoners in addition to the original 52.

Cuba continues to face criticism for its human rights record, and the government's actions have resulted in notoriety for a number of activists. In October, dissident Guillermo Farinas was awarded the Sakharov Prize [JURIST report], given to those who work for human rights and fundamental freedoms. In March, Amnesty International called on Cuba to revoke laws that restrict freedom of expression [JURIST report]. However despite Cuba's record, reports indicated that, in 2008, the number of political prisoners in Cuba had declined from 234 to 205, although the number of brief detentions had increased, according to a report [JURIST report] issued by the Cuban Commission on Human Rights and National Reconciliation in February 2009. The same report also charged that the decline in the number of political prisoners was due to the new practice of imposing shorter prison terms for those arrested employed since 2003.




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Google calls for global trade rules to limit Internet restrictions
Eryn Correa on November 15, 2010 11:08 AM ET

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[JURIST] Google [corporate website, JURIST news archive] on Monday urged the international community to ensure the free flow of online information [white paper text] by respecting global trade regulations and establishing new rules to protect against limitations on the Internet. Google estimates that up to 40 countries are incorporating surveillance tools into their Internet infrastructure, blocking online services and requiring licensing regimes that discriminate against foreign companies, all of which pose significant barriers to information flow and, therefore, global trade. In places like China, which enforces compliance with strict censorship laws before an Internet Content Provider (ICP) license will be issued, this means that Google must comply with censorship regulations or discontinue operations in the world's largest Internet market. Instead, Google urges policy makers to develop an agenda that recognizes the barrier Internet restriction poses to international trade and to reform Internet policy in a way that is consistent with the World Trade Organization [official website] General Agreement on Trade in Services [text, PDF]:
Given the tremendous stakes involved, policymakers must develop and aggressively implement a proactive agenda that aligns Internet policy with the core principles of international trade. First, governments should not treat Internet policy and international trade as stand-alone silos, and recognize that many Internet censorship-related actions are unfair trade barriers. Second, governments should object to measures that affect information flow and that are insufficiently transparent, unreasonably administered, biased in favor of domestic players, or inconsistent with countries' WTO market access commitments, and consider appropriate trade actions. Third, governments should negotiate new trade disciplines that reflect the growing role of Internet-related trade in the global economy, to provide even stronger tools to combat measures that restrict information flow and the Internet.
Google hopes that these issues will be brought forward at the Doha Development Agenda round of WTO negotiations [official website].

In July, a Chinese government official said that Google had agreed to follow Chinese censorship laws [JURIST report] to gain a license renewal that would still prevent users from accessing sites that threatened national security, while not requiring Google to censor its China or Hong Kong based websites. This agreement was reached [JURIST report] in June after a dispute concerning Google's practice of redirecting mainland users to the Hong Kong-based website as a means of working around censorship laws. China responded by reiterating its commitment to open Internet [JURIST report], but stressing that international Internet companies must follow Chinese law. In February, China issued new regulations tightening restrictions on Internet use [JURIST report] by requiring citizens operating websites to submit identity cards and meet with regulators before their sites can be registered. The new policies came amid negotiations with Google regarding the Internet company's January threat to discontinue operations in China [JURIST report] due to the country's overarching Internet censorship.




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Iraq parliament approves national government unity agreement
Carrie Schimizzi on November 15, 2010 8:06 AM ET

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[JURIST] Iraqi parliamentary officials on Saturday unanimously approved a power-sharing agreement whereby Shiite Prime Minister Nouri al-Maliki [BBC profile; JURIST news archive] and President Jalal Talabani [BBC profile] will remain in power for an additional term, despite tension over governmental power positions for the country's minority Iraqiya alliance leader, Iyad Allawi [official website; Al Jazeera profile]. Under the basic unity agreement outlined by Iraqi lawmakers, the country's three major governmental positions will be headed by representatives from the Kurdish, Sunni and Shiite parties, but specific details on how the new national government will run have yet to be decided [CNN report] and must be approved separately in later parliamentary sessions. The deal was not reached without its complications as members of Sunni minority leader Allawi's alliance on Thursday walked out of early sessions in protest [NYT report], but returned to finalize the agreement. According to the basic terms of the deal, a new governmental office, the National Council for Strategic Policies, will be created and led by Allawi as a check on the prime minister's power. The new agreement marked a significant step for the Iraqi government after months of political unrest following the March Parliamentary Elections [CEIP backgrounder; JURIST news archive]. US President Barack Obama praised the agreement [official statement], calling it a "milestone" in the history of modern Iraq:
For the last several months, the United States has worked closely with our Iraqi partners to promote a broad-based government, one whose leaders share a commitment to serving all Iraqis as equal citizens. Now, Iraq's leaders must finish the job of forming their government so that they can meet the challenges that a diverse coalition will inevitably face. And going forward, we will support the Iraqi people as they strengthen their democracy, resolve political disputes, resettle those displaced by war, and build ties of commerce and cooperation with the United States, the region and the world.
It is unclear whether Allawi will accept the governmental position offered to him, after stating that he would refuse to participate [CNN report] in the new government and questioning the intentions of Iraqi lawmakers. Allawi did not attend Saturday's parliamentary session.

Despite uncertainty over the future of Iraq's national government, the new power-sharing agreement is a breakthrough for Iraqi lawmakers. Last month, the Iraqi Supreme Court ruled that the seven-month delay in forming a government following the March parliamentary elections was unconstitutional, ordering parliament to reconvene [JURIST report]. In August, UN Secretary-General Ban Ki-moon [official website] called for Iraq's political leaders to work together [JURIST report] "with a higher sense of urgency" to form a new government, warning that further delays could create more instability. Ban expressed the concern that the delay could lead to a "growing sense of uncertainty in the country" and prevent the parliament from addressing 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.




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Arizona voters approve medical marijuana law
Dwyer Arce on November 14, 2010 11:24 AM ET

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[JURIST] Arizona voters approved Proposition 203 [text, PDF], authorizing the possession of up to two-and-a-half ounces of medical marijuana [JURIST news archive], according to results released by the Arizona Secretary of State Saturday. The measure, voted on during the midterm elections earlier this month, was too close to call on election night [JURIST report] and remained so until all votes were counted Saturday, resulting in a final tally of 50.13 to 49.87 percent [results]. Proposition 203, which was opposed by most state officials [AP report], will allow possession of up to two-and-a-half ounces of marijuana, or up to 12 cannabis plants, for individuals with any of a set list of medical conditions including cancer, amyotrophic lateral sclerosis and AIDS who have gotten a recommendation from their physician and have registered with the Arizona Department of Health Services. Arizona is the fifteenth state to legalize medical marijuana.

In addition to Arizona, voters in California, South Dakota and Oregon also voted on a range of marijuana-based propositions during the midterm elections, all of which were rejected. In California, Proposition 19 [text, PDF], which was defeated by a 54-46 margin, would have legalized the sale and possession of up to one ounce of marijuana and the growth of cannabis plants for personal consumption. In South Dakota, Initiated Measure 13 [text, DOC], which was defeated by a 63-37 margin, would have authorized the cultivation and possession of up to one ounce of marijuana by individuals with certain debilitating diseases who register with the state Department of Health. In Oregon, voters rejected Ballot Measure 74 [text] by a 57-43 margin. That measure would have expanded the state's existing medical marijuana provisions to allow for private dispensaries.




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Rights group praises Suu Kyi release, urges greater action on political prisoners
Dwyer Arce on November 14, 2010 10:49 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Saturday praised the release [press release] of Myanmar pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive], but urged the Myanmar government to release all political prisoners still held. AI described Suu Kyi's release [JURIST report] as "welcome," but emphasized that there are still an estimated 2,200 political prisoners held in Myanmar, the majority of which remain imprisoned for the exercise of the rights to peaceful assembly, expression and association. According to the rights group, these prisoners are being held in "deplorable conditions," which include inadequate food, sanitation and medical treatment, in addition to the use of torture by Myanmar authorities. AI explained:
While Daw Aung San Suu Kyi's release is certainly welcome, it only marks the end of an unfair sentence that was illegally extended, and is by no means a concession on the part of the authorities. ... It is high time the government of Myanmar put an end to the ongoing injustice of political imprisonment in the country, while the international community-including China, India, ASEAN and the UN-must act together to prevent Myanmar from abusing its legal system to penalize peaceful opponents.
The rights group went on to claim that these prisoners have also been moved to remote locations, restricting access to family and legal assistance, and the International Committee of the Red Cross (ICRC) [advocacy website] has been denied access to them since 2005.

AI's statement mirrors one released in September [JURIST report], urging Myanmar to release all political prisoners ahead of the nation's November elections—the first to be held in 20 years. AI's statement marked the third anniversary of the violent government crackdown on activism in response to the Saffron Revolution [Independent backgrounder], a peaceful pro-democracy movement led by Buddhist monks. According to AI, these prisoners "constitute a significant part of the political opposition." Suu Kyi was released Saturday, days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest. Though the challenge was originally scheduled to be heard in October, the court waited until after the controversial elections [JURIST report] to issue its ruling.




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Failure to release convicted Azeri journalist violates ECHR order: HRW
Dwyer Arce on November 14, 2010 10:00 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Saturday criticized the Azerbaijani Supreme Court [press release] for failing to order the release of imprisoned journalist Enyulla Fatullayev in violation of a ruling by the European Court of Human Rights (ECHR) [official website]. On Thursday, the Supreme Court vacated Fatullayev's convictions [JURIST report] for defamation and the incitement of terror and ethnic hatred. The court also ruled that his sentence for tax evasion had been served. The ruling came one month after the ECHR affirmed its prior decision [JURIST report] ordering Fatullayev's release because his convictions and eight-and-a-half-year prison sentence contravened Article 10, Freedom of Speech and Information, and Article 6, Right to a Fair Trial, of the European Convention on Human Rights [text, PDF]. The Supreme Court refused to order his release, however, finding that the ECHR order, which is binding on member states, did not apply to a two-and-a-half-year drug sentence handed down in July. In calling for his release, HRW explained:
The authorities are maneuvering to make it look like they have complied with the European Court's judgment, but no one is fooled. It's clear that they are continuing to silence a journalist who has already served more than two years on a wrongful conviction.
The rights organization went on to describe Fatullayev's case as one in a series of attacks on freedom of expression in Azerbaijan.

In 2009, Fatullayev received, in absentia, one of Committee to Project Journalist's (CPJ) prestigious International Press Freedom Award [press release] and Amnesty International's Award for Journalism Under Threat. Fatullayev, who was editor-in-chief of the Realny Azerbaijan and Gundalik Azerbaijan newspapers until his imprisonment, formerly worked with well-known Azeri journalist Elmar Huseynov [BBC backgrounder] on the Monitor magazine until Huseynov was murdered in 2005. CPJ reported recently that Fatuallyev's imprisonment could be related to his attempts to solve [CPJ report] his colleague's murder. Azerbaijan's incumbent president Ilham Aliyev has been accused by members of the press of repression of the media [JURIST report].




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Myanmar officials release Suu Kyi
Daniel Makosky on November 13, 2010 12:32 PM ET

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[JURIST] The Myanmar Police Force [official website] on Saturday released pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive], ending her almost eight years under house arrest. Police left the area and a barbed-wire fence near her home was removed, allowing Suu Kyi to address supporters [AP report] that had gathered. US Secretary of State Hillary Clinton hailed [press release] Suu Kyi's release from "unjustified detention," while UN Secretary-General Ban Ki-moon [official website] offered similar praise and encouraged the country to release all political prisoners [press release]. Both statements stressed the importance of ensuring that her release is unconditional, and her lawyers have indicated that any attempts to impose conditions are unacceptable. Suu Kyi's release comes days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest. Though the challenge was originally scheduled to be heard in October, the court waited until after Sunday's controversial elections [JURIST report] to issue its ruling. The elections were the first held in the country in 20 years, and have received heavy international criticism. It is anticipated that Suu Kyi will assist in a challenge [AP report] against the election results in which the ruling party maintained its hold on power.

Suu Kyi was prohibited from participating in the election under current Myanmar election laws [JURIST report]. In October, Suu Kyi filed an appeal [JURIST report] to the Supreme Court challenging the dissolution of the National League for Democracy (NLD) [party website]. In June, an independent UN human rights expert called for the release [JURIST report] of Suu Kyi and other political prisoners in Myanmar, claiming their continued detention "contravenes international human rights law and casts a long shadow over planned elections in the country." Suu Kyi originally challenged the election law [JURIST report] dissolving the NLD in April, but her suit was rejected. In March, the NLD announced that it would not take part in the elections after the court rejected [JURIST reports] a lawsuit brought by the NLD to repeal the election laws preventing Suu Kyi from participating.




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US urges Hezbollah not to impede Lebanon tribunal
Sarah Paulsworth on November 13, 2010 11:39 AM ET

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[JURIST] US Secretary of State Hillary Clinton [official profile] has urged Hezbollah [CFR backgrounder; JURIST news archive] not to resort to violence [text] in an attempt to impede the investigation of the UN Special Tribunal for Lebanon (STL) [official website] into the 2005 murder of former Lebanese prime minister Rafik Hariri [JURIST news archive]. In an interview published Friday by the Lebanese Newspaper An-Nahar [official website], Clinton reiterated US support for Lebanon and noted that the work of the STL is "legitimate and necessary." She also stressed the independence of the tribunal and that "no one knows what the Special Tribunal is going to do, who it might indict, or when it might choose to move forward." Clinton's interview followed remarks made Thursday by Hezbollah leader Hassan Nasrallah [BBC profile], who said he would "cut off the hands" [AP report] of any person attempting to arrest a Hezbollah member in connection with the murder. Last month, Nasrallah called for all Lebanese to boycott the STL [JURIST report] after information surfaced suggesting that the tribunal is set to implicate members of Hezbollah as participants in the assassination of Hariri.

Earlier this month, STL rejected two motions [JURIST report] requesting the disqualification of judges on the grounds of bias. Judge Antonio Cassese denied the motions filed by Lebanese General Jamil El-Sayed, determining that El-Sayed failed to provide convincing evidence that judges Afif Chamseddine [motion, PDF; judgment, PDF] and Ralph Riachy [motion, PDF; judgment, PDF] are biased. El-Sayed had argued that, because the judges were nominated by the government of Lebanon, which was subsequently "condemned" by the UN Working Group on Arbitrary Detention, they were biased or at least appeared biased. In August, Hezbollah officials submitted evidence to the STL linking Israel to Hariri's death in response to a request by the tribunal [JURIST reports] to turn over all information relating to the assassination.
The STL is expected to issue indictments [UPI report], possibly in December. The STL was created at the request of Lebanon's government to investigate Hariri's murder and began its work in 2007.




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Canada endorses UN indigenous rights declaration
Daniel Makosky on November 13, 2010 11:37 AM ET

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[JURIST] Canadian UN ambassador John McNee [official profile] on Friday announced that the country has endorsed [press release] the UN Declaration on the Rights of Indigenous Peoples [text], reversing the government's initial opposition to the declaration. Though the government reiterated its concerns about several of the declaration's provisions, it cited [statement] encouragement from community leaders and other countries' experiences in reversing its position on the document. The Canadian government described the move as one intended to strengthen relationships with indigenous communities, saying:
The Declaration is an aspirational document which speaks to the individual and collective rights of Indigenous peoples, taking into account their specific cultural, social and economic circumstances. Although the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws, our endorsement gives us the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.
Shawn A-in-chut Atleo [official profile], National Chief of the Assembly of First Nations [official website], praised [press release] the endorsement, saying that the occasion marks "a new era of fairness and justice."

The declaration was adopted by the UN [JURIST report] in 2007 after 143 member states voted to adopt the treaty, though Canada was among four-including Australia, New Zealand and the US-that declined to do so at the time. The four originally cited concerns that it conflicted with their countries' own laws, among other contentions. New Zealand endorsed [AFP report] the declaration in April, as did [JURIST report] Australia in 2009. The declaration seeks to negate past wrongs to indigenous people worldwide by ensuring equal enjoyment of the laws in each member nation and by prohibiting state sanctioned racial discrimination, forced removal from native lands, and forced assimilation into mainstream national culture.




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China court rules against plaintiff in first HIV employment discrimination suit
Zach Zagger on November 12, 2010 3:36 PM ET

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[JURIST] A Chinese court ruled Friday against a man who claimed he was denied a teaching job because he is HIV-positive, in China's first HIV/AIDs employment discrimination lawsuit. The man, known only by the alias Xiao Wu, said that he passed requisite academic tests and interviews [BBC report] for the job but was denied after his health examination. He brought the suit against the Education Ministry [official website] in Anqing where the court ruled that the city education officials properly assessed [CP report] his unsuitability for the position base on health standards. The man's lawyer said that he is only seeking the job he deserves, and he is already planning to appeal the ruling. There are about 740,000 Chinese people living with HIV/AIDs, and many face discrimination in education, employment and health care.

In June, the UN Development Programme (UNDP), in coordination with the UNAIDS Secretariat [official websites], launched the Global Commission on HIV and the Law [JURIST report] in order to better understand the role played by the law in facilitating universal access to AIDS prevention and treatment. The commission also plans to address some of the most challenging HIV legal issues, including the criminalization of HIV/AIDS transmission and behavioral practices such as drug use and sexual activity. China has struggled to deal with the HIV/AIDs problem. In April, the Chinese government lifted a ban on entry into the country [JURIST report] for individuals with HIV/AIDS and other communicable diseases. In 2006, China responded to the growing numbers of those afflicted with the disease and issued it first guidelines [JURIST report] on HIV/AIDS, banning discrimination against those infected by the virus and providing for free treatment.




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Supreme Court refuses to block 'Don't Ask Don't Tell'
Matt Glenn on November 12, 2010 2:47 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Friday refused to vacate [order, PDF] a stay issued by the US Court of Appeals for the Ninth Circuit [official website] allowing the military to continue enforcing its Don't Ask Don't Tell (DADT) [10 USC § 654; JURIST news archive] policy while the government appeals a September decision [JURIST report] finding the law unconstitutional. The order reads in its entirety:"The application to vacate the stay entered by the United States Court of Appeals for the Ninth Circuit on November 1, 2010, presented to Justice Kennedy and by him referred to the Court is denied. Justice Kagan took no part in the consideration or decision of this application." The Obama administration, which wishes to repeal DADT legislatively, asked the court to maintain the stay in a brief [text, PDF; JURIST report] filed with the Supreme Court Wednesday. The filing was in response to a petition filed last week [text; JURIST report] by the Log Cabin Republicans [advocacy website] asking the court to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the Ninth Circuit. The Log Cabin Republicans expressed disappointment [press release] with Friday's ruling:
With the likelihood of Congress repealing "Don't Ask, Don't Tell" fading with each passing day, judicial relief continues to be perhaps the most viable avenue for ending this unconstitutional policy. We and Log Cabin Republicans will continue to fight on to protect the constitutional rights of all Americans who want to serve in our military without regard to their sexual orientation.
The attorney said the group will ask the Ninth Circuit to expedite the government's appeal.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. On Sunday, Defense Secretary Robert Gates called on the 112th Congress to repeal DADT [JURIST report]. In October, Gates issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Department of Defense officials. In September, a federal judge for the US District Court for the Western District of Washington [official website] ordered [JURIST report] a US Air Force officer to be reinstated after being previously discharged under DADT. Also in September, the US Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the US House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.




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Rwanda high court orders opposition leader to remain jailed for duration of trial
John Paul Putney on November 12, 2010 2:43 PM ET

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[JURIST] The Rwandan high court ruled Friday that opposition leader Victoire Ingabire Umuhoza [campaign website; JURIST news archive] will remain jailed for the duration of her trial on charges of forming a terrorist organization. Judge Johnstone Busingyi indicated that his decision was based on Ingabire's threat to state security [AP report]. The ruling follows an appeal of Tuesday's decision to deny bail and hold Ingabire for 30 days [AP report]. Human Rights Watch (HRW) [advocacy website] has accused Rwanda of silencing dissent leading up to the presidential elections [HRW report] in August, which were marred by a series of attacks on outspoken government critics. In addition to Ingabire, Bernard Ntaganda, president of the opposition PS-Imberakuri party, was arrested in June and detained while awaiting trial. HRW has also called for an independent autopsy [HRW report] of Andre Kagwa Rwisereka, vice president of the opposition Democratic Green Party, after his body was found in July with his head severed and unusual marks on his body.

Ingabire has been subject to multiple arrests since returning to Rwanda in January after being exiled for 16 years. In October, Ingabire was arrested [JURIST report] on charges of being involved in the formation of a terrorist organization. Ingabire was implicated, authorities say, during investigations [AP report] into the activities of Joseph Ntawangundi, an aid to Ingabire, who was accused of commanding a Hutu militia group operating in neighboring Congo. In April, Ingabire was arrested [JURIST report] on accusations of denying the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Authorities cited Ingabire's call for the prosecution [AFP report] of those who killed Hutus during the genocide, in which over 800,000 people, mostly Tutsis, were slain, as evidence of her denial of the genocide. In May, Rwandan authorities arrested [JURIST report] US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] on charges of genocide denial while he was in Rwanda to prepare his defense of Ingabire. Erlinder returned to the US [JURIST report] in June after spending 21 days in a Rwandan prison.




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ACLU files suit over military discharge pay policy
Ashley Hileman on November 12, 2010 1:51 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] filed a class action lawsuit [complaint, PDF; press release] Wednesday over a US military policy that cuts the separation pay of honorably discharged gay and lesbian service members in half. The ACLU filed the lawsuit on behalf of all service members involuntarily discharged in the last six years who were otherwise eligible to receive full separation pay, but instead received only half as a result of the separation pay policy. In the complaint, filed in the US Court of Federal Claims [official website], the ACLU challenged the policy, which the Department of Defense [official website] adopted in 1991, two years before Congress enacted the "Don't Ask Don't Tell Policy" (DADT) [10 USC § 654; JURIST news archive]. The plaintiffs contend the pay policy discriminates against homosexuals because, under federal law [10 USC § 1174], all service members are entitled to separation pay if they have been involuntarily discharged after completing at least six years of service. Joshua Block, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project stated, "[b]y denying servicemen and women full separation pay, the military is needlessly compounding the discrimination perpetuated by 'Don't Ask, Don't Tell." The separation pay policy, unlike DADT, can be changed without congressional approval.

The Obama administration filed a brief [text, PDF; JURIST report] Wednesday asking the US Supreme Court [official website] not to rescind the stay preventing suspension of DADT. The filing is in response to a petition filed last week [text; JURIST report] by the Log Cabin Republicans [advocacy website] asking the court to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the US Court of Appeals for the Ninth Circuit [official website]. The government asked the court not to interrupt the policy while it is being considered in lower courts. The filing noted that President Barack Obama and Secretary of Defense Robert Gates oppose the policy, but also stressed their support for the repeal of the policy through legislative measures, citing the need for deliberation, advance planning and training before transitioning from the 17-year-old policy. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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Kenya rights group accuses official of interfering with ICC election investigation
Julia Zebley on November 12, 2010 1:40 PM ET

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[JURIST] The Kenya National Commission on Human Rights (KNCHR) [advocacy website] on Friday accused former Cabinet minster William Ruto of interfering with the International Criminal Court (ICC) [official website] investigation into the 2007 post-election violence [JURIST news archive], denying accusations of bribing witnesses. Two witnesses, Ken Braziz Wekesa and William Kepkemboi Rono, claimed Tuesday that they were bribed by the KNCHR [Daily Nation], a government-funded human rights group, to testify to the ICC against Ruto, the former higher education minister. Rono and Wekesa claimed they were bribed by KNCHR commissioner Hassan Omar Hassan [KNCHR profile] with money, entry into safe houses and an eventual promise to be moved out of Kenya. The KNCHR, admitting they housed the prospective witnesses [Daily Nation], requested an investigation into Ruto's influence on the witnesses to change their testimonies. The KNCHR also wants the police to arrest Wekesa and Rono and charge them with perjury. Although the two witnesses gave statements to the ICC, they were not slated to testify at the tribunal. The ICC announced a month ago that it would present two cases against the six individuals most responsible for causing the post-election violence, down from the initial 20 officials [JURIST reports] the ICC prosecutor initially accused. It has not been revealed if Ruto will be among those charged, although he was implicated in the initial report on the violence [text, PDF] compiled by the KNCHR.

In September, a businessman challenged the legality of the ICC investigation, claiming it was made illegal by Kenya's recently ratified constitution [JURIST reports]. However, Justice and Constitutional Affairs Minister Mutula Kilonzo [official website], said the government supports the investigation [JURIST report]. The ICC began conducting an investigation in March after the Kenyan parliament rejected [JURIST reports] conducting their own in February. The Kenyan presidential election of 2007 [JURIST report] left at least 1,000 people dead and 500,000 displaced in Kenya after protests erupted from allegations that President Mwai Kibaki [official profile] committed voter fraud.




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ACLU calls on AG to investigate Bush for torture
Drew Singer on November 12, 2010 1:02 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Thursday published an open letter [text, PDF] to US Attorney General Eric Holder [official profile, JURIST news archive], urging him to investigate former president George W. Bush [JURIST news archive] for violation of the federal statute prohibiting torture [text]. In his recently published memoirs [Random House summary], Bush admitted to authorizing the use of waterboarding [JURIST news archive] on suspects Khalid Sheik Mohammed and Abu Zubaydah, which the ACLU says has historically been prosecuted as a crime in the US. The letter also argues that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Assistant US Attorney General John Durham is currently investigating the allegations that the US practiced torture during the Bush Era, but is not investigating the former president himself. The letter said:
The ACLU acknowledges the significance of this request, but it bears emphasis that the former President's acknowledgement [sic] that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.
The letter comes days after Amnesty International [advocacy website] made a similar declaration [press release], saying that Bush's admissions "highlight once again the absence of accountability for the crimes under international law of torture and enforced disappearance committed by the USA."

In July, former head of the Office of Legal Counsel (OLC) [official website] and federal judge Jay Bybee [official profile] denied approving a number of interrogation techniques used by the CIA [JURIST report]. Bybee was questioned by the committee in May in a closed-door hearing about controversial memos written by the OLC during the Bush administration, which asserted the legality of certain enhanced interrogation techniques [JURIST news archive]. The CIA subsequently used the enhanced interrogation techniques on prisoners at the Guantanamo Bay [JURIST news archive] prison facility. According to Bybee, a number of the techniques, including repetitive waterboarding, extended isolation, the use of blackout goggles and daily beatings, were not authorized by the OLC memos. Bybee admitted to authorizing limited use of waterboarding when performed in a specific way, but he contended that the manner in which the CIA used the technique went beyond the recommendations made in the memos.




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DRC court begins trial over death of rights activist Chebeya
Brian Jackson on November 12, 2010 12:51 PM ET

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[JURIST] The trial of eight men accused of killing Democratic Republic of the Congo (DRC) [BBC backgrounder] human rights activist Floribert Chebeya began in the capital city of Kinshasa on Friday. The eight accused men are all DRC policemen, but only five are currently before the court [Reuters report], as three are still at-large. The eight men face charges of abduction, assassination, terrorism and conspiracy. Cherbeya, a prominent rights activist and member of the activist group Voice of the Voiceless, was found dead in his own car [BBC report] in June 2. Soon after Cherbeya's death, national police chief John Numbi was suspended [JURIST report], and the eight accused men were arrested. Numbi does not face charges in Cherbeya's death, but members of Cherbeya's activist group are petitioning the DRC government to move the case to a military court [BBC report] with the rank to try him for Cherbeya's death.

The alleged assassination of a prominent rights activist by law enforcement is merely the latest in the ongoing human rights issues facing the DRC. In early October, Human Rights Watch called for the DRC government [JURIST report] to arrest general Bosco Ntaganda pursuant to an outstanding warrant for war crimes issued by the International Criminal Court (ICC) [official website]. Earlier that same week French authorities arrested a leader [JURIST report] of the Democratic Force for the Liberation of Rwanda for crimes committed by that group in the DRC. Earlier in October, UN peacekeeping forces and the DRC government arrested Mai Mai Cheka [JURIST report] for allegedly leading a rebel group responsible for mass rapes in the country.




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Lebanon military court convicts cleric on terrorism charges
Megan McKee on November 12, 2010 10:03 AM ET

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[JURIST] A Lebanese military court on Friday convicted cleric Omar Bakri Mohammed of terrorism and sentenced him to life in prison. Bakri was found guilty [CP report] of belonging to an armed group that plotted to carry out terrorist acts against Lebanese soldiers and was sentenced along with 54 others who fought in clashes with the Lebanese army in 2007. Tried and convicted in absentia, Bakri was reportedly surprised when his lawyer informed him of the verdict. He claims to have never received a summons or an arrest warrant. As Bakri lives openly in Tripoli, a city in the north of Lebanon, and appears regularly on television, it is not immediately clear why he was not arrested. Bakri maintains that the charges are fabricated and has refused to turn himself in.

After living in the UK for 20 years, Bakri fled to Lebanon in 2005 after being named in an investigation by British authorities for allegedly making remarks in support of the London bombers [JURIST reports]. Bakri also reportedly praised insurgents in Iraq and Afghanistan while vowing not to inform authorities of any information he learned about future terrorist attacks. In 2005, he denied talking about the bombings and said he planed to return to London. While living in Britain, Bakri headed the now-dissolved Islamist group al-Muhajiroun.




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Azerbaijan court partially overturns journalist's convictions
Daniel Makosky on November 12, 2010 9:10 AM ET

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[JURIST] The Azerbaijani Supreme Court [official website, in Azeri] on Thursday partially overturned the convictions of imprisoned Azeri journalist Enyulla Fatullayev. The court vacated [RFE/RL report] Fatullayev's convictions for committing defamation and inciting terror and ethnic hatred and ruled that his sentence for tax evasion is complete. The ruling comes one month after the European Court of Human Rights (ECHR) [official website] affirmed [APA report] its prior decision [judgment text; JURIST report] ordering Fatullayev's release because his convictions and eight-and-a-half-year prison sentence contravene Article 10, Freedom of Speech and Information, and Article 6, Right to a Fair Trial, of the European Convention on Human Rights [text, PDF]. Fatullayev will remain in prison, however, as the court found that the ECHR order does not apply to a separate two-and-a-half-year drug sentence that many regard as an attempt to prolong [CPJ reports] his incarceration. Elchin Sadiqov, Fatullayev's lawyer, announced his intentions to appeal for his client's immediate release.

In 2009, Fatullayev received, in absentia, one of Committee to Project Journalist's (CPJ) prestigious International Press Freedom Awards [press release; video] and AI's Award for Journalism Under Threat [BBC report]. Fatullayev, who was editor-in-chief of the Realny Azerbaijan and Gundalik Azerbaijan newspapers until his imprisonment, formerly worked with well-known Azeri journalist Elmar Huseynov [BBC backgrounder] on the Monitor magazine until Huseynov was murdered [BBC report] in 2005. CPJ reported recently that Fatuallyev's imprisonment could be related to his attempts to solve [report] his colleague's murder. Azerbaijan's incumbent president Ilham Aliyev has been accused by members of the press of heavy-handed repression of the media [JURIST report].




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EU digital chief calls existing 'net neutrality' regulations sufficient
Daniel Makosky on November 12, 2010 8:22 AM ET

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[JURIST] European Commissioner for Digital Agenda Neelie Kroes [official website] on Thursday said that existing regulations to ensure net neutrality [backgrounder; JURIST news archive] are adequate for the time being [press release]. Kroes spoke following a four-month fact-finding period on net neutrality, a concept by which the open flow of information over the Internet is protected regardless of the amount of revenue generated by accessing the information. She stressed that maintaining the competitive nature of the European telecommunications market, transparency of service plans and ability to readily change between providers are all crucial to ensuring universal access to the Internet. According to Kroes, additional legislation might compromise the telecommunication industry's growth, though may be considered should current laws fail to sufficiently protect consumers. Such regulations may be implemented in the event that operators attempt to artificially spur sales by reducing services in basic packages or blocking access to particular web sites.

Net neutrality remains a controversial issue. In the US, Senator Jim DeMint (R-SC) [official website] introduced legislation [JURIST report] in July intended to block the Federal Communications Commission (FCC) [official website] from implementing its National Broadband Plan [official website; materials]. The FCC opened a new proceeding [JURIST report] a month earlier to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services after the US Court of Appeals for the District of Columbia [official website] ruled [JURIST report] in April that the commission lacks authority to require broadband providers to treat all Internet traffic equally. Telecommunications companies Verizon, AT&T and Comcast [corporate websites] argue that net neutrality would inhibit their ability to effectively manage Internet traffic.




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Montana AG moves to dismiss same-sex marriage lawsuit
Drew Singer on November 11, 2010 12:32 PM ET

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[JURIST] Montana Attorney General Steve Bullock [official profile] has filed a motion to dismiss [text, PDF] a lawsuit [complaint, PDF] by seven same-sex couples seeking rights equal to married couples. The lawsuit, filed in July [JURIST report] by the American Civil Liberties Union (ACLU) [advocacy website] alleges that the state has limited the couples' decision-making powers regarding their health care and finances. The complaint argues that the Montana Constitution says "no person shall be denied equal protection under the laws," but the state legislature has failed to pass legislation in various fields to protect same-sex couples. It requests that the court order the state to offer "same-sex couples and their families a legal status and statutory structure that confers the protections and obligations that the State provides to different-sex couples who marry, but not the status or designation of marriage." Bullock's motion notes several protections that same-sex couples do receive and argues that the courts cannot deliver the requested relief:
Lesbian, gay, and bisexual Montanans have suffered social stigma and discrimination, but Plaintiffs do not allege any state action that has caused these effects. ... By definition -- a definition contained in the Montana Constitution -- these spousal benefit laws do not apply to them. Instead of challenging any law now on the books, Plaintiffs ask the Court to require the enactment of a new law extending spousal benefits beyond the constitutional definition of marriage. Because this relief requires the exercise of the legislative rather than the judicial power, and because spousal benefits do not violate the Montana Constitution, Plaintiffs have failed to state a claim upon which relief can be granted.
The motion also argues that the plaintiffs aren't receiving protections because they are gay, but because they aren't legally married, and they receive the same rights as all other non-married Montanans.

On Tuesday, the Gay and Lesbian Advocates and Defenders (GLAD) [advocacy website] and the ACLU filed separate federal lawsuits [JURIST report] challenging the federal Defense of Marriage Act (DOMA) [text]. Last month, the US Department of Justice filed two notices of appeal [JURIST report] in the US District Court for the District of Massachusetts, defending DOMA. In July, Judge Joseph Tauro ruled that the DOMA definition of marriage as between a man and a woman is unconstitutional [JURIST report] because it interferes with the states' right to define marriage. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses.




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Obama administration asks Supreme Court not to block 'Don't Ask Don't Tell'
Aman Kakar on November 11, 2010 12:19 PM ET

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[JURIST] The Obama administration filed a brief [text, PDF] Wednesday asking the US Supreme Court [official website; JURIST news archive] not to rescind the stay preventing suspension of the military's "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The filing is in response to a petition filed last week [text; JURIST report] by the Log Cabin Republicans [advocacy website] asking the court to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the US Court of Appeals for the Ninth Circuit [official website]. The government asked the court not to interrupt the policy while it is being considered in lower courts. Additionally, the filing contends that the Log Cabin Republicans bear a heavy burden in asking to overturn the indefinite extension:
An applicant for vacatur of a stay pending appeal granted by a court of appeals ordinarily must demonstrate, first, a reasonable probability that the case will eventually come before this Court for plenary consideration; second, a significant possibility that a majority of the Court eventually will agree with the District Court's decision; and, third, that the failure to vacate the stay probably will cause irreparable harm that outweighs the irreparable harm to the government from a vacatur of the stay.
The filing notes that President Barack Obama and Secretary of Defense Robert Gates oppose the policy, but also stresses their support for the repeal of the policy through legislative measures, citing the need for deliberation, advance planning and training before transitioning from the 17-year-old policy.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. On Sunday, Gates called on the 112th Congress to repeal DADT [JURIST report]. In October, Gates issued a memorandum limiting the authority to discharge openly gay service members [JURIST report] to five senior Department of Defense officials. In September, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] a US Air Force officer to be reinstated after being previously discharged under DADT. Also in September, the US Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the US House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.




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Taiwan Supreme Court reduces sentence for ex-president Chen
Andrea Bottorff on November 11, 2010 12:12 PM ET

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[JURIST] The Supreme Court of the Republic of China [official website, in Chinese] Thursday reduced the 12-year prison sentences for former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] and his wife to 11 years each for bribery charges. The Supreme Court also assigned fines totaling nearly USD $5 million [AFP report]. The court remanded to lower court [Taipei Times report] another case in which the Taiwan High Court [official website, in Chinese] had previously sentenced [JURIST report] Chen to 20 years in prison on embezzlement charges. The decision comes only one week after the Taipei District Court [official website, in Chinese] acquitted [JURIST report] Chen, his wife and other relatives of charges of money laundering, breach of trust and insider trading in a separate bank merger fraud case. Chen has an opportunity to appeal [AP report] the Supreme Court's decision to the highest court in the country, the Council of Grand Justices.

Chen Shui-bian and his wife were accused of taking more than $20 million in bribes from banks and financial institutions that sought to protect themselves during the implementation of Chen's financial reform program. The pair were sentenced to life in prison [JURIST report] in September 2009 after being convicted of embezzlement, receiving bribes, forgery and money laundering. Chen was again indicted [JURIST report] shortly after the September sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008 and formally indicted [JURIST report] the following month. He unsuccessfully appealed [JURIST report] his pretrial detention in January 2009. Chen served as president of Taiwan from 2000-2008.




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Australia high court rules application of migrant laws unfair
Maureen Cosgrove on November 11, 2010 11:20 AM ET

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[JURIST] The High Court of Australia [official website] on Thursday ruled unanimously [judgment text] that two Sri Lankan men held offshore on Christmas Island had been denied procedural fairness. The court stated that the government wrongfully denied the asylum seekers, who wanted to apply for visas, access to the Australian legal system. The plaintiffs entered the Australian territory of Christmas Island by boat and were detained under section 189(3) [text] of the Migration Act of 1958 [text], which provides that "If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person." Upon detention, the Department of Immigration and Citizenship [official website] conducted a Refugee Status Assessment (RSA) [overview] for each of the plaintiffs and concluded that neither plaintiff was a person to whom Australia had protection obligations. The investigators who conducted Independent Merits Reviews (IMR) [overview], third-party RSA reviews requested by the plaintiffs, reached the same conclusion. The plaintiffs were unable to challenge the RSA and IMR inquiries because they were being held at offshore detention centers. The court held that the reviewer who conducted the RSA made an error of law by not treating provisions of the Migration Act and court precedent as binding. The ruling also establishes that asylum seekers who arrive by boat must be treated as those who arrive by plane. The ruling could force the Australian government to review its offshore processing policy [BBC report] for asylum seekers.

Australia's immigrant processing system has undergone a number of changes in recent years. In April, Australia temporarily suspended [press release, JURIST report] processing of all asylum claims from Sri Lanka and Afghanistan because of improved security situations in those countries. The Australian House of Representatives [official website], in August 2006, approved the Migration Amendment (Designated Unauthorized Arrivals) Bill [text] requiring asylum seekers arriving in Australia by boat to be processed in offshore camps [JURIST report], rather than on the mainland. A November 2006 judgment [JURIST report] by the High Court of Australia held that a "holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled" and that the person may not remain a refugee. Australia's mandatory detention [AHRC backgrounder] policy, which requires any non-citizen without a visa seeking entry to be detained, had previously been challenged [JURIST report] by rights groups.




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FCC investigating Google for Street View privacy breach
Erin Bock on November 11, 2010 10:58 AM ET

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[JURIST] The US Federal Communications Commission (FCC) [official website] confirmed on Wednesday that it is investigating Internet search company Google [corporate website; JURIST news archive] to determine if it violated communications laws when its Street View vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. The FCC did not reveal any details, but stated that the investigation was officially opened earlier this year [WSJ report]. If Google is found to have intentionally violated federal communications law, including electronic eavesdropping laws, the company could face fines of up to $50,000 for each violation. Members of Congress have also indicated that the incident could factor into new Internet privacy legislation that will be considered next year.

The FCC is the most recent government organization to initiate an investigation into the breach, which has come under international scrutiny. Earlier this month, the UK Information Commissioner's Office (ICO) [official website] announced that the company committed a "significant breach" [JURIST report] of the country's Data Protection Act [text] when Street View vehicles inadvertently collected personal information over WiFi networks including passwords, e-mails and URLs. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Also in October, Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that the Street View breach violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF]. Investigations were also initiated in Australia, South Korea and Spain [JURIST reports]. Additionally, earlier this month, Google announced that it had settled [JURIST report] a class action lawsuit regarding privacy breaches related to its Google Buzz social networking program.




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Myanmar high court rejects Suu Kyi appeal
Jay Carmella on November 11, 2010 9:00 AM ET

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[JURIST] The Myanmar Supreme Court on Thursday rejected an appeal by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the conditions of her house arrest. The appeal is largely symbolic, as Suu Kyi is scheduled to be released [JURIST report] on Saturday. However, Suu Kyi's lawyers fear that the ruling could be a sign that conditions will be attached [BBC report] to her release. The Supreme Court announced [JURIST report] in October that it would hear the appeal that Suu Kyi lodged in May. Despite a scheduled hearing for October 18, the court waited until after Sunday's controversial elections [JURIST report] to decide against Suu Kyi. The elections were the first held in Myanmar in 20 years, and have received heavy international criticism. Suu Kyi's lawyers indicated that she will not accept any conditions on her release, and it is anticipated that she will assist in a challenge [AP report] against the election results in which the ruling party maintained its hold on power.

Suu Kyi was prohibited from participating in the election under current Myanmar election laws [JURIST report]. In October, Suu Kyi filed an appeal [JURIST report] to the Supreme Court challenging the dissolution of the National League for Democracy (NLD) [party website]. In June, an independent UN human rights expert called for the release [JURIST report] of Suu Kyi and other political prisoners in Myanmar, claiming their continued detention "contravenes international human rights law and casts a long shadow over planned elections in the country." Suu Kyi originally challenged the election law [JURIST report] dissolving the NLD in April, but her suit was rejected. In March, the NLD announced that it would not take part in the nation's first elections in 20 years after the Myanmar Supreme Court rejected [JURIST reports] a lawsuit brought by the NLD to repeal the election laws preventing Suu Kyi from participating.




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Supreme Court considers railroad tax, gender discrimination cases
Jaclyn Belczyk on November 10, 2010 2:05 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in CSX Transportation, Inc. v. Alabama Department of Revenue [oral arguments transcript, PDF; JURIST report] on whether a state's exemption of railroad competitors, but not railroads, from a generally applicable sales and use tax is subject to challenge as "another tax that discriminates against a rail carrier" under section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 USC § 11501(b)(4) [text]. The US Court of Appeals for the Eleventh Circuit ruled [opinion, PDF] that the sales and use tax on diesel fuel does not unlawfully discriminate against railroad companies. Counsel for CSX argued that Congress intended to protect the railroads from this type of discrimination. Counsel for the US government argued as amicus curiae on behalf of CSX. Counsel for the respondents argued that property tax exemptions and sales and use tax exemptions should be treated the same way.

In Flores-Villar v. United States [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether its decision in Nguyen v. Immigration and Naturalization Service [opinion text] permits gender discrimination that has no biological basis. Ruben Flores-Villar raised a Fifth Amendment equal protection challenge to two former sections of the Immigration and Nationality Act, 8 USC § 1401(a)(7) and 8 USC § 1409 [texts], which impose a five-year residence requirement, after the age of 14, on US citizen fathers, but not on US citizen mothers, before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the provisions survive intermediate scrutiny. Counsel for Flores-Villar argued:

In Nguyen, the Court approved the imposition of legitimation requirement only upon fathers of non-marital children born abroad. That was based on biological differences between men and women. It provided proof of parentage and proof of an opportunity to make a relationship with the child that adhered in birth as to the mother.

But here, the residential requirements that are at issue here have no biological basis. They set up barriers to the transmission of citizenship by younger fathers, but not younger mothers, and they are based upon gender stereotypes that women, not men, would care -- would care for non-marital children.

Counsel for the US argued:
Congress in deciding who among the various people born abroad should be made citizens of the United States has to take into account myriad factors that may bear on that question and its judgment. They include importantly Congress's prediction in the case of conferring citizenship at birth, what would be that person's likely connection to the United States. Congress also has to consider the interaction with the laws of other countries where these people may be born. It may take into account equities, potential statelessness or dual nationality. These are complicated questions to which the courts should defer.
Flores-Villar argues the court should apply intermediate scrutiny, while the government argues for rational basis review.




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UN official urges more states to join cluster munitions treaty
LaToya Sawyer on November 10, 2010 1:47 PM ET

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[JURIST] UN Deputy Secretary-General Asha-Rose Migiro [official profile] on Tuesday praised the nations that have signed the Convention on Cluster Munitions (CCM) [text; official website] and urged more states to join the convention [statement] at the First Meeting of States Parties [official website]. The CCM, which went into effect [JURIST report] as binding international law in August, bans the use, stockpiling, production and transfer of cluster bombs—weapons that break apart, releasing large numbers of smaller, self-contained explosives that spread out before detonating on impact. The purpose of the meeting was to bring state parties, UN agencies, international organizations, civil society and cluster munitions survivors together to discuss plans on the convention's implementation. Migiro also praised the progress that has been made since the implementation of the ban:
The Convention on Cluster Munitions has given a great boost to international humanitarian law. It is unambiguous in banning the use, production, transfer and stockpiling of cluster munitions. It sets out clear obligations for clearing unexploded ordnance, for educating populations about the risks they face, and for assisting victims. It provides a framework for action in post-conflict scenarios, with strong provisions for international assistance and national planning. ... Until recently, many governments considered cluster munitions indispensable to their military strategies. But they proved themselves open to the arguments of those who said that such policies and practices were out of step with international norms - that they caused indiscriminate harm, and could jeopardize a country's recovery and development.
Beyond the ban, the UN wants to implement other elements of the treaty that call for assisting victims, donating assistance and cooperating with affected countries. Since its adoption in August, the convention now boasts increasing support in a recent update of 108 signatures and 45 countries that have ratified the treaty.

The CCM was officially opened for signature [JURIST report] in December 2008 at a conference in Oslo, Norway. It has been deemed one of the most significant disarmament and humanitarian treaties in more than a decade since the implementation of the Mine Ban Treaty in 1997 that prohibited the use and stockpiling of antipersonnel mines. The US is one of the countries that still has not signed the treaty. The US claims that the ban would impede humanitarian efforts [JURIST report] by discouraging cooperation with non-signatories. However, the US did adopt a formal policy [text, PDF] on cluster munitions in June 2008 "intended to minimize the potential unintended harm to civilians and civilian infrastructure."




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Czech government still discriminating against Roma children: rights groups
Aman Kakar on November 10, 2010 1:46 PM ET

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[JURIST] The Czech Republic continues to discriminate against Roma [JURIST news archive] school children despite a court order, according to a complaint [text, PDF] filed Monday with the Committee of Ministers of the Council of Europe [official website] by the Open Society Justice Initiative, the European Roma Rights Centre and the Greek Helsinki Monitor [advocacy websites]. The groups allege that the Czech government has failed to implement a November 2007 European Court of Human Rights (ECHR) [official website] decision [text; JURIST report], which determined that the Czech Republic indirectly discriminated against Roma children. The ECHR found that the Czech Republic violated article 14 of the European Convention on Human Rights [text, PDF], read in conjunction with article 2 of protocol 1, by segregating the children in schools for children with mental disabilities. The complaint alleges that the situation of Roma children has remained unchanged since the 2007 judgment. In some cities, Roma children are still 27 times more likely to be sent to schools for the mentally disabled than non-Roma children, and, nationally, Roma children are 12 times more likely than their non-Roma counterparts to attend schools where they receive an inferior education. OJSI executive director James Goldston said [press release]:
Each year since the Grand Chamber issued its judgment, Romani children in the Czech Republic have continued to be shunted into sub-standard schools and classes for the mentally disabled. The Committee of Ministers should demand an immediate halt to segregation of Romani children and adoption within six months of the legal and budgetary measures essential to secure equal opportunity.
The complaint also alleges that governments of Greece and Croatia have also continued to discriminate against Roma children. The Committee of Ministers will meet on November 30 to consider the Czech Republic's advancement in desegregating its schools. The Committee will also consider the cases involving illegal segregation in Greece and Croatia.

Other countries have also faced criticism for their treatment of Roma migrants. Last month, the European Commission [official website] announced that it was temporarily postponing the human rights complaint [JURIST report] filed against France over the country's failure to respect the EU's Free Movement Directive of 2004 [Directive 2004/38/EC materials] in its expulsion of Roma. In September, the EC asked the French government to enact legislation guaranteeing that procedural safeguards would be put in place in order to protect EU citizens against "arbitrary, discriminatory or disproportionate decisions." Also in September, Amnesty International [advocacy website] urged EU members to stop forcibly deporting Roma migrants to Kosovo [JURIST report]. In August, the UN Committee on Elimination of Racial Discrimination [official website] expressed concern with the discrimination faced by Roma migrants [JURIST report] in numerous European countries.




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UK court to review controversial online copyright infringement act
Sarah Miley on November 10, 2010 12:27 PM ET

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[JURIST] The UK High Court on Wednesday granted a request to review the nation's Digital Economy Act [text and materials], which is aimed at the prevention of online copyright infringement. The claim [text, PDF] was filed by UK Internet service providers (ISPs) BT Group PLC and TalkTalk Telecom Group PLC [corporate websites] in July in response to the legislation being rushed through parliament by the previous Labour government just weeks before the general election in May. BT and TalkTalk claim that the bill was not given adequate scrutiny before its passage and may require certain amendments in order to comply with EU rules [press release] on privacy and policing by ISPs. The ISPs also claim [press release] that Internet users are already moving away from peer-to-peer (P2P) content sharing and that "[t]he measures in the [legislation] will hasten the migration away from P2P, ignite the development of new tools and popularise the notion that stealing content is socially acceptable." The court did not disclose a time frame for the review.

The UK Parliament [official website] approved the legislation [JURIST report] in April authorizing the suspension of Internet service for those who repeatedly download copyrighted material illegally. The act also received Royal Assent [text] and is now law. The law calls on ISPs to block download sites, reduce a user's broadband speeds and ultimately shut down a user's Internet access in order to prevent piracy of copyrighted materials. The bill, known as a three-strikes law, imposes stricter penalties on repeat digital offenders than had previously existed, and has received a great deal of public criticism. Despite the controversy over the legislation, MPs who support it say it is a necessary step to protect the creators of digital content. Last week, UK Prime Minister David Cameron [official website] announced that Britain's intellectual property laws will undergo a review [JURIST report] with an eye towards modernization, in an effort to encourage innovation and small business. Cameron suggested that the law may be reformed in order to allow for increased use of copyright material without the owner's permission. The announcement, seen as an attempt to restore balance after the controversial Digital Economy Act, has been cheered by Internet freedom campaigners and small businesses alike.




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Cambodia genocide tribunal facing political interference: lawyer
Andrea Bottorff on November 10, 2010 11:02 AM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] faces harmful opposition and political interference from the Cambodian government, the chief defense lawyer said Wednesday. Announcing his resignation, Richard Rogers said that the tribunal, established by the UN and the Cambodian government to prosecute former Khmer Rouge [BBC backgrounder; JURIST news archive] leaders, may be unable to continue its prosecutions [AP report] if the political opposition continues. Cambodian Prime Minister Hun Sen [BBC profile] said last month that the government will not allow the ECCC to prosecute [JURIST report] low-ranking Khmer Rouge officials. Hun Sen was formerly a Khmer Rouge officer, along with many of his closest allies. Rights group Open Society Justice Initiative [advocacy website] published a report [text, PDF] Wednesday recommending that the ECCC try Khmer Rouge cases instead of local Cambodian courts. The report acknowledges the intense political opposition to the trials and argues that only the ECCC would be able to uphold "international fair trial standards" despite political influence in the country. The group encouraged the UN and other international participants to continue supporting the tribunal [press release].

Last month, UN Secretary-General Ban Ki-moon [official website] insisted that the ECCC will decide whether to prosecute [JURIST report] additional Khmer Rouge officers as part of an "international judicial process." Ban called for those responsible to be held accountable [text] for the tragic events that allegedly caused the death of more than two million civilians between 1975 and 1979. In September, the ECCC indicted [JURIST report] four former Khmer Rouge leaders who have been detained since 2007 and are charged with crimes against humanity, genocide, grave breaches of the Geneva Conventions and offenses under the Cambodian Criminal Code 1956. The ECCC handed down its first conviction [JURIST report] of a former Khmer Rouge official in July. Kaing Guek Eav [case materials; JURIST news archive], also known as "Duch," was found guilty of crimes against humanity and of violating the 1949 Geneva Conventions. In August, lawyers for Duch filed a notice of appeal [JURIST report] of his conviction, and in September, the prosecution filed its own notice of appeal [JURIST report] seeking to increase Kaing's term of imprisonment.




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China court convicts tainted milk scandal activist
Ann Riley on November 10, 2010 9:42 AM ET

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[JURIST] The Daxing District People's Court of China on Wednesday convicted Zhao Lianhai for disturbing the social order during the tainted-milk scandal, sentencing him to two-and-a-half years in prison. In 2008, melamine-tainted milk from China [JURIST news archive] was blamed for the deaths of six infants, and the Chinese government promised that all tainted product would be seized and destroyed. Zhao organized a website, "Kidney Stone Babies," and established a support group, furnishing information and resources to parents whose children were sickened or killed by melamine-tainted milk. Zhao's own four-year-old son became sick after consuming milk containing melamine, which is used in plastics and fertilizer production. Amnesty International (AI) [advocacy website] condemned the sentence after previously expressing concern [press releases] that Zhao's detention put him "at risk" for torture. AI Deputy Director for the Asia-Pacific Catherine Baber said:
We are appalled that the authorities have imprisoned a man the Chinese public rightly view as a protector of children, not a criminal. Zhao Lianhai should never have been arrested for organizing a self-help group and exercising his legal rights to seek compensation from a commercial firm.
In 2009, as compensation claims began going to court, Beijing police issued a formal arrest warrant and charged [JURIST report] Zhao with picking quarrels and provoking trouble. According to AI, authorities denied Zhao access to a lawyer and visitation rights with his family during his detention.

The problem of tainted Chinese milk is not subsiding, despite Chinese government promises to the contrary. In September, police in China's Shanxi province arrested seven individuals [JURIST report], including the executive of a dairy company, after that company's powdered milk was found to contain melamine. In July, Chinese authorities discovered 64 tons of raw dairy materials [Xinhua report] contaminated with melamine in Qinghai province. In February, Chinese police arrested three individuals [JURIST report] for their roles in the 2008 tainted milk scandal. Two other individuals were executed [JURIST report] in November 2009 after being convicted of endangering public safety and selling toxic food. Chinese courts began hearing [JURIST report] tainted milk suits in 2009, after families began filing individual claims. Also in 2009, a Chinese court declared Sanlu Group, the Chinese company that produced the melamine-tainted milk, bankrupt [JURIST report]. In 2008, China's Hebei Supreme Court ruled [JURIST report] out the possibility of initiating a class action lawsuit on behalf of the contaminated milk victims.




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Federal court begins trial of accused Somali pirates
Daniel Richey on November 10, 2010 8:07 AM ET

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[JURIST] Jury selection began Tuesday [court notice] in the case of five Somali men accused of an April attack on the USS Nichols, which was deployed to combat piracy in waters off the eastern coast of Africa. In July, the men pleaded not guilty [JURIST report] to a number of charges, including conspiracy, piracy and attack with the intent to plunder a vessel. They were charged by a federal grand jury [JURIST report] in April, along with six others accused of attacking the USS Ashland in the Gulf of Aden. The trial in the US District Court for the Eastern District of Virginia [official website] is the first US piracy trial in more than 100 years.

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]. Another group of nine pleaded not guilty to piracy charges [JURIST report] in May. Somali officials have criticized [BBC report] the US for exercising jurisdiction over Muse and other pirate suspects, 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, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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No charges to be filed in CIA videotape destruction case: DOJ
Daniel Richey on November 10, 2010 7:13 AM ET

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[JURIST] No criminal charges will be brought against Central Intelligence Agency (CIA) [official website] officials for destroying videotapes of controversial interrogations of terror suspects during the Bush administration, a federal prosecutor announced [press release] Tuesday. US Department of Justice (DOJ) [official website] special prosecutor John Durham "has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes," said DOJ spokesperson Matthew Miller. Durham was appointed in 2008 by then-attorney general Michael Mukasey to investigate the circumstances surrounding the destruction of CIA videotapes [JURIST news archive] of the interrogation of suspected al Qaeda operatives Abu Zubaydah and Abd al-Rahim al-Nashiri, which allegedly depicted numerous instances of violence and "enhanced interrogation techniques" alleged to be torture. According to documents [text, PDF; JURIST report] obtained and released by the American Civil Liberties Union (ACLU) [advocacy website], former CIA head of clandestine services Jose Rodriguez ordered his staff to destroy the tapes on November 9, 2005, after hiding their existence from the September 11 Commission, reportedly out of fear of backlash against the intelligence agency that might result if the tapes were made public. The DOJ's announcement coincides with the expiration Tuesday of the five-year statute of limitations for bringing obstruction of justice charges. ACLU Executive Director Anthony Romero criticized [press release] the decision:
This decision is stunning — there is ample evidence of a cover up regarding the destruction of the tapes. The Bush administration was instructed by a court of law not to destroy evidence of torture, but that's exactly what it did. The destruction of these tapes showed complete disdain for the rule of law. ... Prosecutor Durham was charged with a criminal investigation into torture, and that investigation must include the people at the top, not just low-ranking officials. We cannot say that we live under the rule of law unless we are clear that no one is above the law.
The DOJ's announcement does not rule out the possibility of other charges against CIA officials in connection with the interrogation of Zubaydah and al-Nashiri, and there is speculation that other charges could still be filed [WP report], including ones related to obstruction of Durham's three-year investigation. Other charges still may come out of Attorney General Eric Holder's 2009 expansion of the probe to include investigations of CIA operatives' conduct during other interrogations at the agency's numerous "black site" [JURIST news archive] detention facilities, investigations that remain ongoing.

Internal CIA documents [part 1, PDF; part 2, PDF; part 3, PDF] released in April revealed [JURIST report] that agency head Porter Goss may have supported the destruction of the videotapes. The documents, which are heavily redacted, show that Goss agreed with Rodriguez's order to destroy the tapes, despite being unaware of the order before it was carried out. Last year, it was revealed that 12 of the 92 tapes destroyed by the CIA contained evidence of "enhanced interrogation techniques." The DOJ had previously acknowledged that the CIA destroyed [letter, PDF] 92 videotapes in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications of why it could not release the information.




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Rights groups file lawsuits challenging Defense of Marriage Act
Sarah Paulsworth on November 9, 2010 3:04 PM ET

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[JURIST] The Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union (ACLU) [advocacy website] filed separate federal lawsuits Tuesday challenging the Defense of Marriage Act (DOMA) [text; JURIST news archive]. In GLAD's lawsuit [text, PDF; press release], several plaintiffs are challenging the denial of certain marriage benefits and protections that are available to similarly situation heterosexual couples in Connecticut, New Hampshire and Vermont. The plaintiffs have been denied these benefits because, according to DOMA, "'spouse' refers only to a person of the opposite sex who is a husband or a wife." GLAD's Legal Director Gary Buseck said:
Every day that DOMA stands, it arbitrarily divides married couples into two categories. And the extra burdens that DOMA has imposed on Massachusetts families since 2004 are now being endured by families in Connecticut, Vermont and New Hampshire.
In the ACLU lawsuit [text, PDF; press release], filed in the US District Court for the Southern District of New York [official website], plaintiff Edith Windsor is challenging provisions of DOMA that deprive of her certain tax deductions she would receive as a widow.

In October, the US Department of Justice filed two notices of appeal [JURIST report] in the US District Court for the District of Massachusetts [official website], defending DOMA. In July, Judge Joseph Tauro ruled that the DOMA definition of marriage as between a man and a woman is unconstitutional [JURIST report] because it interferes with the states' right to define marriage. The Obama administration has extended some federal benefits [JURIST report] to same-sex couples, including allowing domestic partners to be added to insurance programs, to use medical facilities, and to be included in family size and house allocation considerations. In June, Obama ordered executive agencies to expand [JURIST report] federal childcare subsidies and services and travel and relocation payments to the same-sex partners of federal employees and their children. The Obama administration has said DOMA is discriminatory but has maintained that it is nonetheless constitutional. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses. DOMA was passed in 1996.




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France court allows corruption investigation of 3 African leaders
Sarah Posner on November 9, 2010 2:37 PM ET

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[JURIST] The French Court of Cassation [official website, in French] ruled Tuesday that an investigation into assets obtained in France by three African leaders can proceed. The initial complaint [AP report] in the case, filed by anti-corruption groups Transparency International (TI) and SHERPA [advocacy websites], accused the late Omar Bongo of Gabon, Denis Sassou-Nguesso of the Democratic Republic of the Congo (DRC), Teodoro Obiang Nguema of Equatorial Guinea and their relatives of acquiring luxury homes and cars in France with African public funds. The high court's decision allowing the investigation to proceed overturned a lower court ruling that halted the investigation [JURIST report] on the grounds that activists could not bring suits against foreign heads of state. In response to Tuesday's ruling, TI noted that a judge will now be able to determine how the assets were acquired [press release] and what role banking institutions may have played in the alleged money laundering scheme. TI indicated that the ruling may allow those affected by the corruption to seek restitution, a right guaranteed by the UN Convention Against Corruption [materials], which France signed in 2005. TI also expressed hope that the investigation will help to overcome the reluctance to prosecute similar politically and financially sensitive cases in the future.

The complaint in the case was originally filed after a 2007 police inquiry [Reuters report] listed French properties, bank accounts and other assets held by the three African leaders and their relatives. A French magistrate heard the case in 2009 and ruled that the suit could move forward [Le Parisien report, in French], but French state prosecutors appealed the decision to the Paris Court of Appeals, which refused to hear the case. The case is sensitive for France, with Gabon as a former colony. France has struggled with how to reconcile its colonial history [JURIST news archive].




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Kenya court rules no jurisdiction over international piracy cases
Julia Zebley on November 9, 2010 2:31 PM ET

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[JURIST] The high court of Mombasa ruled Tuesday that Kenya does not have jurisdiction outside of its national waters, releasing nine suspected Somali pirates [JURIST news archive]. Citing the repeal of Chapter VIII, section 69 of the Kenyan penal code [text, PDF] as the basis for his decision, Justice Mohamed Ibrahim [official profile] concluded that the suspects, who were arrested in March 2009 in the Indian Ocean by German and US troops, did not violate the territorial waters of Kenya. Section 69 was repealed by the Merchant Shipping Act of 2009 [text, PDF], signed into law in June 2009, which replaced the original penal code language with, in section 371, "any person who (a) commits any act of piracy; (b) in territorial waters, commits any act of armed robbery against ships shall be liable, upon conviction, to imprisonment for life." Ibrahim expressed concern for the suspects' safety and ordered that they be put in the custody of the UN High Commission of Refugees. In April, Kenyan Foreign Minister Moses Wetangula said that Kenya would no longer accept Somali pirate cases [JURIST report], although there are currently 84 pirates still waiting to be tried [Reuters] in Kenyan courts.

The UN has urged other nations to provide assistance to Kenya in conducting pirate trials and has aided by opening a high-security courtroom and donating USD $9.3 million [JURIST reports] to fund piracy trials. The UN has also considered creating an international tribunal [JURIST report] to take pressure off of Kenya. Earlier this month, Kenya acquitted 17 accused pirates [JURIST report] who were arrested in the Gulf of Aden by the US and South Korean navies. Kenya also convicted two groups of seven pirates in September, on separate occasions [JURIST reports]. Somali pirates have also been tried in the Netherlands, the US, Yemen, Seychelles and Mauritius [JURIST reports], although the bulk of trials still occur in Kenya.




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Lebanon tribunal rejects motions to disqualify judges for bias
John Paul Putney on November 9, 2010 2:27 PM ET

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[JURIST] The head of the Special Tribunal for Lebanon (STL) [official website] has rejected two motions requesting the disqualification of judges on the grounds of bias. Judge Antonio Cassese on Friday denied the motions filed by Lebanese General Jamil El-Sayed, determining that El-Sayed failed to provide convincing evidence that judges Afif Chamseddine [motion, PDF; judgment, PDF] and Ralph Riachy [motion, PDF; judgment, PDF] are biased. El-Sayed had argued that, because the judges were nominated by the government of Lebanon, which was subsequently "condemned" by the UN Working Group on Arbitrary Detention, they were biased or at least appeared biased. In his ruling Cassese noted the importance of impartiality to the judicial system, but also warned against false accusations of bias:
I firmly believe that, while Judges must be absolutely free and appear to be free from any preconceived beliefs, it is also necessary for them to be sheltered from mere innuendoes as to their professional past or their current attitude. If they were not so safeguarded, they would be unable to discharge their difficult mission with equanimity. Charges of bias unsupported by compelling evidence can only sow confusion and uncertainty in the mind of all those who watch the unfolding of international justices, as well as trouble the conscience of Judges, thereby affecting their serenity. The Tribunal will firmly reject any attempt at guesswork or speculation intended to project onto the Tribunal political motivations that instead are, and shall always remain, extraneous to it, as is fitting and appropriate for any proper court of law.
Cassese acknowledged that El-Sayed's contention, if accepted, would essentially preclude any Lebanese judge from sitting on the tribunal, contrary to its design as a mixed-composition tribunal.

The STL is the UN-backed tribunal charged with investigating the 2005 assassination of former Lebanese prime minister Rafik Hariri [JURIST news archive]. The STL is expected to issue indictments [UPI report], possibly in December, and may name members of Lebanese resistance movement Hezbollah [CFR backgrounder] in connection with the assassination. Last month, the Secretary-General of Hezbollah, Sheikh Hassan Nasrallah [BBC profile], called for all Lebanese to boycott the STL [JURIST report]. In August, Hezbollah officials submitted evidence to the STL linking Israel to Hariri's death in response to a request by the tribunal [JURIST reports] to turn over all information relating to the assassination.




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Supreme Court hears arbitration, death penalty cases
Jaclyn Belczyk on November 9, 2010 2:04 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in AT&T Mobility v. Concepcion [oral arguments transcript, PDF; JURIST report] on whether the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings. Counsel for AT&T argued that the Ninth Circuit's "interpretation of section 2 of the Federal Arbitration Act would permit a State to oppose in arbitration any procedure employed in court and thereby require arbitration to be a carbon copy of litigation, precisely what the Act was designed to prevent." Counsel for the respondents argued:
The State law at issue here is not preemptive, for three reasons. First, it is consistent with the equal footing principle or nondiscrimination principle that this Court has consistently recognized is embodied in section 2. Second, it's consistent with two key purposes that the savings clause fulfills under the FAA: ensuring that arbitration is a matter of consent and not coercion; and that it represents merely a choice of forum, but not an exemption from the law. And third, the State law at issue is a correct and legitimate application of the State's common law to which this Court should defer.
In Cullen v. Pinholster [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether to reinstate the death penalty against defendant Scott Pinholster. Pinholster was convicted of the 1984 killing of two men during a burglary in Los Angeles. The US Court of Appeals for the Ninth Circuit overturned Pinholster's death sentence, finding that his lawyer failed to disclose evidence of mental illness to the jury. Counsel for the petitioner argued that:
because the California Supreme Court rejected Mr. Pinholster's claim of ineffective assistance of counsel on its merits, Federal habeas corpus relief is unavailable under 28 U.S.C. section 2254(d)(1) unless Mr. Pinholster first met his burden of demonstrating that the State court rejection of his claim was unreasonable. He did not do that in this case, and thus the lower courts erred in granting him habeas corpus relief.
Counsel for Pinholster argued that the Ninth Circuit's ruling should be upheld because the court applied the correct standard.



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UN rights council makes recommendations for US to improve record
Maureen Cosgrove on November 9, 2010 1:58 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] issued recommendations Tuesday for the US to align its human rights policies and practices with international standards. The recommendations stem from the Universal Periodic Review (UPR) [official website; JURIST report] of the US government's human rights record before the UNHRC in Geneva. The list of 228 recommendations by other nations included repeated calls to abolish the death penalty [AP report], as well as reduce overcrowding in prisons, ratify international treaties on the rights of women and children, and increase measures to prevent racial profiling. US State Department legal adviser [official website] Harold Koh [academic profile] responded to the recommendations by stating that capital punishment is not precluded by international law. Koh also said the US government would take the recommendations into consideration to strengthen its commitment to human rights and comply with international standards. This was the US government's first UPR evaluation before the UNHRC.

At the opening of the fifteenth session of the UNHRC in September, High Commissioner for Human Rights Navi Pillay [official website] emphasized the need for protection of human rights both during emergencies and on a regular basis. However, she chided countries [JURIST report], including the US, France, China and Russia, for ongoing human rights violations. In August, the US State Department (DOS) [official website] released its human rights review [JURIST report] and presented the report to the UNHRC. 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 Obama administration received criticism from both human rights groups and US politicians for initially not taking part [press release] in the UPR sessions, a process which each of the 192 UN member states must undergo every four years [JURIST comment]. The US was elected to the UNHRC [JURIST report] in May 2009. The UNHRC was created [JURIST report] in 2006, at which time the Bush administration declined to seek a Council seat or participate in its proceedings due to a perceived anti-Israeli sentiment.




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Nigeria court rules president must approve constitutional amendments
Eryn Correa on November 9, 2010 10:36 AM ET

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[JURIST] A judge for Nigeria's Federal High Court [official website] in Lagos ruled Monday that an amendment to the 1999 Nigerian Constitution [text] made by the National Assembly (NASS) [official website] cannot become operational law without the assent of the president. Justice Okechukwu Okeke ruled [Daily Independent report] that the NASS's refusal to forward the amendment to President Goodluck Jonathan [BBC profile; JURIST news archive] for approval violated Section 58 of the Constitution. The court determined that the proposed amendment would remain inchoate until presented to the president. The amendment, known as the Constitution (First Amendment) Act 2010 [text, PDF], concerns the election process and was approved by the NASS and a two-thirds majority of the State Houses of Assembly. The challenge was brought to the court by Olisa Agbakoba, former president of the Nigerian Bar Association [official website]. The NASS lawyers asked to court to throw out the lawsuit, stating that only the attorney general has the authority to this type of challenge. Representatives for the NASS plan to appeal the ruling.

The Constitution (First Amendment) Act 2010 was passed in June. It repeals the Independent National Electoral Commission Act 2006 in order to re-instate the Nigerian Independent National Election Commission (INEC) [official website]. The INEC regulates the conduct of federal, state and local council elections and similar matters. Also in June, the legislature passed [JURIST report] revisions to the Constitution that would clarify the exercise of executive authority in absence of the president. The constitutional revisions would also change federal election law. It would remove a provision of the constitution that disallowed people who had been charged with fraud from standing for election and would require candidates for federal office to have a degree beyond secondary education. The 2011 presidential election will be the first since the death of former president Umaru Yar'Adua [BBC obituary] in May. Former vice president Jonathan assumed the presidency in February after parliament voted [JURIST report] for him to step in for the ailing Yar'Adua.




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Federal judge hears arguments in targeted killings lawsuit
Carrie Schimizzi on November 9, 2010 9:59 AM ET

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[JURIST] Judge John Bates of the US District Court for the District of Columbia [official website] heard arguments Monday on the Obama administration's ability to conduct "targeted killings" in the case of radical Muslim cleric and US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. Counsel for the plaintiffs, including Awlaqi's father, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] argued against the government's right to kill any US citizen labeled a terrorist without a court warrant and demanded [press releases] it disclose the standards for authorizing the targeted killings outside of combat zones of individuals considered threats to national security. Lawyers for the government argued the case should be dismissed on procedural grounds, saying Awlaqi's father, a citizen of Yemen, has no legal standing to bring the lawsuit [JURIST reports] and that the case involves state secrets [NYT report] the court is not permitted to examine. ACLU Deputy Legal Director, Jameel Jaffer, who presented arguments for the plaintiffs, said the Fourth and Fifth Amendments [texts] present limits to the government's power to target American citizens:
If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state. It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution.
The arguments took place on the same day Awlaqi called for jihadist attacks on US citizens in a video posted on extremist websites and found by SITE intelligence group [official website]. In the 23-minute video, Awlaqi speaks in Arabic to jihadists, telling them no special permission is needed [WSJ report] to kill Americans or any enemies of Muslims. Awlaqi, a suspected member of al Qaeda [GlobalSecurity backgrounder], is believed to be linked to Major Nidal Hasan, the Fort Hood shooting suspect, as well as the Christmas Day airplane bombing attempt [JURIST news archive].

Last week, Yemeni prosecutors charged [JURIST report] Awlaqi with incitement to kill foreigners. Awlaqi is believed to be hiding in Yemen and was charged in absentia. US officials have labeled Awlaqi as a terrorist and have placed him on a list to be captured or killed. The Yemeni government has sent forces on a counter-terrorism operation into the Province of Shabwa, where it is believed that Awlaqi is hiding. In August, the ACLU and the CCR obtained a specially designated global terrorist (SDGT) license that enables them to represent Awlaqi, but announced they were 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].




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France ex-president Chirac ordered to face second corruption trial
Zach Zagger on November 9, 2010 9:06 AM ET

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[JURIST] A French judge on Monday ordered former president Jacques Chirac [official profile; JURIST news archive] to stand trial on a second set of charges in connection with the funding of his political party during his time as mayor of Paris from 1977-1995. Chirac is accused of providing fictitious city jobs [Le Monde report, in French] for members of his Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French]. He is already facing a trial in March in a related case in which he is charged with embezzlement and breach of trust. Chirac, at 77 years old, will be the first French president [Bloomberg report] to stand trial.

In September, Chirac agreed to pay the city of Paris [JURIST report] USD $741,000 in compensation for money he allegedly paid to supporters for whom he created false jobs in exchange for the city agreeing to drop out of a corruption suit [France 24 report] against him. Chirac was ordered to stand trial [JURIST report] on related charges of embezzlement and misuse of public funds last October. The charges were originally filed in 2007 [JURIST report] after Chirac's presidency ended and he no longer had judicial immunity.




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Federal judge temporarily blocks Oklahoma amendment banning use of Islamic law
Zach Zagger on November 9, 2010 7:59 AM ET

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[JURIST] A judge for the US District Court for the Western District of Oklahoma [official website] on Monday temporarily blocked [order text] a state constitutional amendment banning courts from considering international or Islamic Law. Chief Judge Vicki Miles-LaGrange issued a temporary restraining order [AP report], stopping the measure from taking effect until a preliminary injunction hearing scheduled for November 22. The suit was brought [JURIST report] by the Oklahoma chapter of the Council on American-Islamic Relations (CAIR) [advocacy websites] and Oklahoma citizen Muneer Awad, who argued that the ban would invalidate part of his will, which is partially rooted in Islamic Sharia Law. Oklahoma voters overwhelmingly approved the measure [JURIST report], State Question 755 (SQ 755) [text, PDF], in the November 2 mid-term elections with 70 percent of the vote. Miles-LaGrange's order prevents the Oklahoma Board of Elections [official website] from certifying the results of the election. It is still unclear exactly what effect [WSJ report] the measure would have since foreign law is not binding on state or federal courts.

SQ 755 would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law. It was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. Duncan defended SQ 755 as necessary to protect Oklahoma [MSNBC report, video] from an attack on the fundamental Judeo-Christian principles on which he says the US is founded. Still, the necessity of the amendment has been questioned [CNN report] due to the fact that the use of Islamic law in US courts would likely violate the First Amendment prohibition on laws respecting an establishment of religion.




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Africa regional court asks Niger junta to release toppled leader
Matt Glenn on November 8, 2010 3:24 PM ET

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[JURIST] The Court of Justice of the Economic Community of West African States (ECOWAS) [AICT backgrounder] ruled Monday that the Nigerien military junta should release ousted president Mamadou Tandja [BBC profile; JURIST news archive] whom they have held since deposing him [JURIST report] in a February coup. The court, which does not have the power to make the junta comply with its judgment, ruled that Tandja's detention was illegal [AFP report]. Tandja's lawyer said that the junta must respect [Reuters report] the court's decision and release his client. The junta, however, has indicated it will appeal the ruling [BBC report].

Last week, Nigerian voters approved a constitution [JURIST report] limiting presidential powers that military leaders say will aid the transition back to civilian rule. The February coup, which left at least three Nigerien soldiers dead, was in response to a referendum abolishing presidential term limits [JURIST report], allowing Tandja to remain in office for three more years and to run in any subsequent elections. Niger's opposition parties denounced the referendum, claiming that Tandja inflated poll numbers to support the new constitution's adoption. After the coup, Nigerien rights group United Front for the Safeguard of Democratic Assets (Fusad), called for the prosecution of Tandja [JURIST report] on treason charges. Allied with the opposition party, Fusad claims that Tandja is guilty of corruption violating the constitution [AFP report], and alleges that he gave out contracts to foreign oil and uranium firms. Niger [CIA World Factbook profile], which is known for its exportation of uranium, has gone through five constitutions and military regimes since it's founding in 1960.




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South Korea high court rules pro-North Korea music violates security law
Matt Glenn on November 8, 2010 2:48 PM ET

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[JURIST] The Supreme Court of South Korea [official website] on Monday upheld an appellate court decision that sentenced a defendant to a two-year suspended sentence for possessing instrumental music with titles praising North Korea. Prosecutors charged the defendant, identified only by her last name Song, with violating South Korea's National Security Act, which prohibits people from disseminating materials that promote North Korea. A district court dismissed the charges, ruling that, since the songs lacked lyrics, they could not violate the law. An appellate court, however, reversed the district court. The Supreme Court held that the lack of lyrics did not prevent prosecution [Yonhap report] under the law and that the materials should be looked at in context.

In September, Human Rights Watch (HRW) [advocacy website] criticized South Korea [press release] for using the National Security Act to restrict speech that does not pose a threat to national security. HRW claims that the law "clearly violates South Korea's international human-rights obligations." In 2004, an estimated 100,000 protesters gathered in support [JURIST report] of the National Security Act. The Constitutional Court upheld the law [JURIST report] earlier that year.




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Supreme Court hears arguments on copyright, tax exemption for medical residents
Jaclyn Belczyk on November 8, 2010 2:09 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in Costco v. Omega [oral arguments transcript, PDF; JURIST report] on whether the first-sale doctrine [17 USC § 109(a)], which provides that the owner of any particular copy "lawfully made under this title" may resell that good without the authority of the copyright holder, applies to imported goods manufactured abroad. Swiss watchmaker Omega [corporate website] manufactures watches in Switzerland and then sells them to authorized distributors overseas. Watches were purchased by third parties and eventually sold to Costco [corporate website], which sold them to US consumers without authorization from Omega. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the first-sale doctrine does not apply to imported goods. Counsel for Costco argued that the Ninth Circuit misinterpreted congressional intent: "According to the Ninth Circuit in Omega, Congress intended to treat foreign manufactured goods better in this respect than goods made in the United States. It is wildly implausible that Congress had any such intent." Counsel for Omega argued "that 'lawfully made under this title' would include a copy that was manufactured in the United States, but that it is not so limited." Counsel for the US government argued as amicus curiae in support of Omega's position.

In Mayo Foundation for Medical Education and Research v. United States [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether medical students working as full-time residents are eligible for the student exception to Federal Insurance Contributions Act (FICA) [text] taxes imposed on employers and employees. Medical students working for the Mayo Clinic in Rochester, Minnesota, receive stipends from the foundation and the University of Minnesota [academic websites] for the medical and patient care services they provide. The district court ruled that residents qualify for the exemption and ordered the US Treasury Department [official website] to refund FICA taxes paid during the second quarter of 2005 to both Mayo and the university. The US government appealed to the US Court of Appeals for the Eighth Circuit, which reviewed the case de novo. The circuit court reversed [opinion, PDF] the lower court's holding, concluding that the judiciary must "defer to the regulation limiting this exception to students who are not full-time employees because it is a permissible interpretation of the statute." Counsel for the Mayo Clinic argued that the "services are performed for the purpose of receiving an education," which should qualify the students for the student exception to FICA taxes. Counsel for the US argued that "the Treasury Department has reasonably concluded that an employee's paid work does not make him an exempt student, even if he also learns from his job."




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Dutch court rules eviction of squatters violates Europe rights treaty
Ann Riley on November 8, 2010 2:08 PM ET

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[JURIST] The Hague Court of Appeals [official website, in Dutch] on Monday prohibited the eviction [press release, in Dutch] of squatters in Amsterdam, The Hauge, and Leeuwarden. In an oral ruling, the court relied on the European Convention on Human Rights [text], asserting that a person cannot be forced from a home without a prior affirmation from a judge that the eviction is legal. The European Court of Human Rights [official website] has issued similar decisions. To crack down on crime, the Dutch House of Representatives and Senate [official websites, in Dutch] imposed a ban on squatting [No. 320; materials, in Dutch], which took effect on October 1. The law gives prosecutors the ability to vacate criminally squatted buildings without a court order. The court announced their ruling on Monday, as the first evacuations are planned for following day. A written decision will be available next week.

Squatting in the Netherlands has been a tolerated practice for many decades. After Parliament passed legislation banning squatting, squatters in Amsterdam and Nijmegen held protests and riots before the law took effect in October. Previous attempts to ban squatting in 2006 were unsuccessful. In the 1970s, a Dutch court ruled that entering an unused building was not trespassing. In 2009, the Eastern High Court of Denmark [official website, in Danish] ruled that the Copenhagen counterculture group Christiana [community website, in Danish] had not acquired permanent property rights [JURIST report] and no squatters' rights were accrued by the community to the abandoned Copenhagen navy base and that the Danish government [official website] was within its rights to cancel the group's use of the property. In 2005, 46,000 people were arrested in Zimbabwe's squatting sweep [JURIST report] "Operation Restore Order," a highly controversial government initiative to reduce crime and illegal buildings in Harare and other towns. According to the UN and the opposition, the exercise left between 200,000 and 1.5 million people homeless, respectively.




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Myanmar elections denounced as unfair, restrictive of citizens' rights
Ashley Hileman on November 8, 2010 12:34 PM ET

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[JURIST] The European Union (EU) [official website] on Monday criticized [press release, PDF] the Myanmar government for failing to take the necessary steps to ensure a free, fair and inclusive electoral process for the country's first elections in over 20 years. The EU noted that many aspects of the elections, which were held Sunday, were incompatible with internationally accepted standards, especially with regards to the bias shown against parties in opposition to the Union Solidarity and Development Party (USDP), the ruling military junta. Opposition parties faced limits on their opportunities to campaign as well as restrictions on their ability to register for the elections. In addition, the elections were characterized by severe restrictions on citizens' freedoms of expression and assembly and limited access to the media. Multiple claims alleging fraud [Reuters report] reinforce the notion that the elections were flawed. In Yangon, Myanmar's largest city, many voters were unable to find their names on electoral rolls, and at least six parties filed complaints to the election commission, claiming state workers were forced to vote for the USDP. The EU was not alone in its disapproval of the elections. As a result of the restrictions in place throughout the electoral process, the UK described the elections as a missed opportunity for democratic change [AP report]. US President Barack Obama, while delivering a parliamentary address in India, criticized [AFP report] Myanmar's military leaders for stealing the election and also criticized India for its silence on the issue. A spokesperson for UN Secretary General Ban Ki-Moon said that the Secretary followed the elections [statement] and reiterated his call that all political prisoners be released so that the elections could mark a transition to a democratic government.

One party and candidate excluded from the elections was Myanmar's largest opposition party, the National League for Democracy (NLD) [party website] and its leader, Aung San Suu Kyi [BBC profile; JURIST news archive]. Suu Kyi was prevented from participating in the elections under Myanmar's current election laws [JURIST report], which include a provision prohibiting political prisoners from seeking public office. In October, Myanmar's Supreme Court heard [JURIST report] Suu Kyi's final appeal of her extended sentence for violation of the terms of her house arrest [JURIST report]. In that appeal, filed in May, lawyers for Suu Kyi argued that she is innocent, and that the election law passed by the ruling junta should be annulled [JURIST report].




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Australia announces referendum to recognize indigenous people in constitution
LaToya Sawyer on November 8, 2010 12:09 PM ET

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[JURIST] Australian Prime Minister Julia Gillard [official website] on Monday announced a national referendum [press release] that seeks to include Aboriginal and Torres Strait Islanders in the Australian Constitution [materials]. Currently, although Aborigines make up almost three percent of the Australian population, they are not mentioned in the Constitution. The referendum will be among Australia's first steps in efforts to build strong relationships of trust and mutual respect among the natives and the rest of Australia. In the statement, made jointly with Indigenous Affairs Minister Jenny Macklin [official profile], the two officials stressed the need to incorporate native peoples into Australia's founding document:
Recognition will demonstrate that we are a country that is united in acknowledging the unique and special place of our first peoples. The Government is pursuing an ambitious agenda to close the gap in Indigenous disadvantage, including undertaking major reform and delivering unprecedented investment in early education, health, jobs, housing and services, and infrastructure. Formal recognition in our foundation document will build on this work by publicly acknowledging our history and the significant contribution that Aboriginal and Torres Strait Islander peoples continue to make to this nation.
As part of the process, Gillard and Macklin announced the formation of an expert panel to pose amendment changes that will appeal to the majority of Australians. The Australian Human Rights Commission [official website] voiced support [press release] for such a panel, calling it a "sensible approach" to ensuring that there is a broad pool of views needed to get a consensus on the proposed constitutional changes. The panel is expected to report back to the government [AFP report] with proposed options by the end of 2011 in time for voting to occur in line with the 2013 election.

In recent years, the Australian government has recognized the long history of discrimination and disadvantage among its native citizens, although its efforts have not always resulted in better conditions. In August, Amnesty International Australia (AIA) criticized the racial discrimination [JURIST report] that exists in Australia, which, according to AIA, violates the International Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration on the Rights of Indigenous Peoples [texts]. In June, the Australian government reinstated its previously suspended Racial Discrimination Act [JURIST report] in the Northern Territory, which allows governmental authorities to regulate how welfare money is spent by the indigenous people of the country. In March, UN special rapporteur James Anaya condemned the law [press release], calling it problematic from a human rights point of view. Last year, Australia endorsed [JURIST report] the aforementioned Declaration on the Rights of Indigenous People, which reversed the position held by previous Australian governments. Former prime minister Kevin Rudd championed the cause of improved living conditions for and relations with Australia's indigenous population during his term in office, and offered and official apology on behalf of the federal government in February 2008 for past mistreatment to the nation's indigenous population.




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Supreme Court vacates habeas petition on state law claim
Ann Riley on November 8, 2010 11:57 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday unanimously ruled [opinion, PDF] that lower federal courts may not issue writs of habeas corpus to state prisoners unless their confinement violates federal law. The court overturned a ruling by the US Court of Appeals for the Seventh Circuit [official website] in Wilson v. Corcoran [docket], which granted habeas relief [opinion, PDF] to Joseph Corcoran, convicted of killing four men and sentenced to the death penalty. The court explained that the habeas ruling affirmed by the appeals court was inappropriately based on a deficiency of Indiana state law:
But it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts. The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." And we have repeatedly held that "federal habeas corpus relief does not lie for errors of state law."
The court vacated and remanded the Seventh Circuit's grant of habeas relief.

In 1997, an Indiana trial court found Corcoran guilty of four counts of murder. The trial judge sentenced him to death, relying on non-statutory aggravating factors. In 2000, the Indiana Supreme Court [official website] vacated the sentence because the trial court may have weighed factors of the innocence of the victims, heinousness of the offense and future dangerousness as aggravating circumstances, and later accepted a revised sentencing order issued in 2002. Corcoran applied for a writ of habeas corpus in the US District Court for the Northern District of Indiana [official website], arguing that the trial court relied on impermissible aggravating factors. In 2007, the district court granted habeas relief on the grounds that the prosecutor violated the Sixth Amendment [text] when offering to take the death penalty off the table in exchange for a waiver of a jury trial. In 2008, the appeals court denied the district court's habeas relief, but later granted the petition on remand from the Supreme Court in 2010, arguing that, in order to comply with Indiana law, the trial court needed to reconsider its sentencing determination.




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Supreme Court declines to hear first challenge to health care law
Eryn Correa on November 8, 2010 11:04 AM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] on Monday declined to hear [order list, PDF] the first preliminary challenge to the recently enacted health care reform law [text; JURIST news archive]. Former California lawmaker Steve Baldwin, along with the Pacific Justice Institute [advocacy website] filed for a writ of certiorari in September, asking the court to review [cert. petition, PDF] the split among district courts over who may or may not sue to challenge the health insurance mandate. Baldwin originally filed suit in the US District Court for the District of Southern California [official website] where it was determined that he lacked standing [opinion text] because he failed to prove that he had suffered any injury. District Judge Dana Sabraw dismissed the case but conceded that Baldwin would be able to pursue it again if he could prove he sustained an injury from the Act. Subsequent to the district court ruling, Baldwin filed an appeal in the US Court of Appeals for the Ninth Circuit, which is still pending. Baldwin's suit is aimed at various federal government officials, including those in the US Department of Health and Human Services and the Department of Labor, which has also raised the question of whether Justice Elena Kagan [JURIST news archive], as former solicitor general, will recuse herself in cases where she previously played that role. The Supreme Court's order list denying review gives no indication that she will.

Although it was seen as unlikely that the Supreme Court would grant certiorari on a district court issue, commentators predict that the health care bill will eventually become an issue for the court. Last week, voters in Arizona and Oklahoma approved measures to amend their state constitutions to make the individual insurance mandate unenforceable [JURIST report] in their states. In October, a judge for the US District Court for the Northern District of Florida denied a motion to dismiss [JURIST report] a lawsuit brought by a group of attorneys general challenging the constitutionality of the health care law. The lawsuit, filed in March and joined by 20 states and the National Federation of Independent Businesses (NFIB) [JURIST reports], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states. Also last month, a judge for the US District Court for the Eastern District of Michigan ruled [JURIST report] that the individual insurance mandate was constitutional. In August, a judge for the US District Court for the Eastern District of Virginia denied a motion to dismiss [JURIST report] a suit brought against the bill for lack of subject matter jurisdiction, conceding that Virginia had standing in alleging the federal bill conflicted with state law.




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Taiwan judicial officials indicted on bribery, corruption charges
Carrie Schimizzi on November 8, 2010 9:03 AM ET

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[JURIST] The Taiwan Supreme Prosecutors Office [official website, in Chinese] on Monday announced the indictment [press release, in Chinese] of 13 people, including three High Court [official website, in Chinese] judges, on charges of bribery, corruption and money laundering. The three judges are accused of accepting more than NT $5 million (USD $155,000) from former legislator Ho Chi-Hui [JURIST news archive] in exchange for clearing him of charges related to a corrupt land-development project in May. According to the indictment, prosecutors will be seeking four-year prison term and a fine of NT $1.5 million (USD $50,000) for senior High Court judge Tsai Kuang-chih, an 18-year prison term and a NT $1.5 million fine for judge Chen Jung-ho and 11 years and a NT $2 million ($60,000 USD) fine for the judge Li Chun-ti. Ho Chi-Hui, also named in the indictment, is accused of facilitating the bribe and is appealing a 19-year sentence and NT $220 million (USD $6.8 million) fine handed down in 2004 [CNA report]. Others named in the indictment [AP report] include two lawyers, two other High Court judges and a Banqiao District Prosecutor.

In August, the Taipei Prosecutors Office [official website] conducted raids [JURIST report] on the homes of several High Court judges and 18 other locations searching for evidence related to the bribery deals. The three High Court judges were arrested [JURIST report] on corruption charges in July and were suspended from duty following their arrests. The judges' indictments follows the Taipei High Court's acquittal [CNA report] last week of former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] on charges of embezzling USD $20 million from banks [JURIST report] that sought to protect themselves during Chen's financial reform program. Chen is also appealing a 20-year sentence for corruption and embezzlement. He 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 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 the current president is using Chen's trial to distance himself from Chen's anti-China views.




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Taiwan prosecutors to appeal ex-president's acquittal in bank merger fraud case
Erin Bock on November 7, 2010 1:39 PM ET

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[JURIST] Prosecutors from the Taiwanese Special Investigation Panel (SIP) announced Sunday that they will appeal the recent acquittal of former president Chen Shui-bian [BBC profile; JURIST news archive]. Chen was acquitted [JURIST report] on Friday of charges of money laundering, breach of trust and insider trading after the Taipei District Court [official website, in Chinese] ruled there was insufficient evidence against the former president. SIP spokesperson Chen Hung-ta stated that the prosecutors disagreed [Taiwan News report] with the ruling and the court's findings. Chen Hung-ta indicated that the prosecution found [Focus Taiwan report] the court's views on presidential authority as well as its interpretation of other related facts to be unacceptable. Current Taiwanese President Ma Ying-jeou [official website, in Chinese; BBC profile] also questioned the court's reasoning and called on courts to be less isolated from society [Taipei Times report].

Chen Shui-bian and his wife were accused of taking more than $20 million in bribes from banks and financial institutions that sought to protect themselves during the implementation of Chen's financial reform program. The pair were sentenced to life in prison [JURIST report] in September 2009 after being convicted of embezzlement, receiving bribes, forgery and money laundering. Chen was again indicted [JURIST report] shortly after the September sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008 and formally indicted [JURIST report] the following month. He unsuccessfully appealed [JURIST report] his pretrial detention in January 2009. Chen served as president of Taiwan from 2000-2008.




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Gates calls for repeal of 'Don't Ask Don't Tell' before seating of new Congress
Dwyer Arce on November 7, 2010 10:15 AM ET

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[JURIST] US Defense Secretary Robert Gates [official profile] called [press release] Sunday for Congress to repeal the military's "Don't Ask Don't Tell" policy [10 USC § 654; JURIST news archive] before the inauguration of the 112th Congress in January. Following Tuesday's midterm elections [unofficial results], in which Republicans made significant gains in both houses of Congress, it is considered to be less likely that the legislation will pass [AP report] after the seating of the new members. In May, the House of Representatives voted to repeal the policy, but the legislation stalled in the Senate [JURIST reports], leaving the policy in place. The repeal of the "Don't Ask, Don't Tell" policy has been an important issue for President Barack Obama since taking office, and its inclusion in the State of Union Address [JURIST report] reaffirmed it as a top priority for the administration. Also Sunday, Gates called for the Senate to ratify the New START treaty [materials, PDF; BBC backgrounder], which was signed in April [JURIST report] by Obama and Russian President Dmitry Medvedev. The treaty was approved in September [JURIST report] by the Senate Foreign Relations Committee, but has not yet been voted on by the full Senate.

Since the enactment of "Don't Ask Don't Tell" in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. In addition to political attempts at ending the ban on gays in the military, it has faced legal challenges regarding its constitutionality. The Log Cabin Republicans (LCR) [advocacy website] on Friday filed a petition asking the US Supreme Court to rescind the stay issued [JURIST reports] by the US Court of Appeals for the Ninth Circuit allowing the policy to continue being enforced. In September, the US District Court for the Central District of California found the policy an unconstitutional violation of gay service members' First Amendment and due process rights and issued the initial injunction [JURIST reports] against its enforcement the following month.




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Federal appeals court rules death row inmate must appeal directly to Supreme Court
Sarah Paulsworth on November 6, 2010 1:15 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] rejected a petition [ruling, PDF] from Troy Anthony Davis [advocacy website; JURIST news archive] on Friday for a certificate of appealability (COA), ruling that Davis must appeal his case directly to the US Supreme Court [official website]. Davis was seeking a COA to appeal the US District Court for the Southern District of Georgia [official website] September decision [order part 1, PDF; part 2, PDF; JURIST report] refusing his habeas corpus petition. In August 2009, the Supreme Court ordered [text, PDF; JURIST report] the district court to review Davis' case. He had filed an original writ of habeas corpus [cert. petition, PDF] directly in the Supreme Court. In its ruling on Friday, the federal appellate court noted that "[p]ursuant to 28 U.S.C. § 2253(c) [Cornell LII materials], a habeas petitioner may not appeal from a district court's adverse ruling unless a circuit justice or judge issues a COA." In addition, the court said:
If this court granted Davis's request for a COA and reviewed the district court's order at this juncture, as Davis requests, we would effectively be restoring his remedies in federal court, in complete contradiction to the express intent of Congress. In effect, we would be nullifying our previous decision denying Davis leave to file a successive habeas petition. We decline to do that.
In footnote 1 of the district court's September decision, the court called the jurisdictional effects of its decision "unclear," but said Davis would likely have to appeal this decision to the Supreme Court.

In October 2008, 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. Davis has been on death row since 1991 for allegedly murdering [Savannah Morning News report] an off-duty Savannah, Georgia, police officer in 1989.




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Taiwan ex-president Chen acquitted in bank merger fraud case
Sarah Paulsworth on November 6, 2010 12:21 PM ET

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[JURIST] Former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] and 21 co-defendants, including his wife and other relatives, were acquitted on Friday of charges of money laundering, breach of trust and insider trading. Taipei District Court [official website, in Chinese] Judge Chou Chan-chun cited lack of evidence [AFP report] in his ruling, noting that, under the Anti-Corruption Act, the president does not control bank mergers [Taipei Times report] and as such he could not take bribes to influence them. Chen and his wife were accused [Taiwan News report] of taking bribes from banks and financial institutions [JURIST report] that sought to protect themselves during the implementation of Chen's financial reform program. Prosecutors said the couple took more than $20 million [Taipei Times report] from financial groups that sought to ensure that their mergers with smaller financial institutions went smoothly.

Chen was found guilty on corruption charges and sentenced to life in prison [JURIST report] in September 2009. Chen's wife was also given a life sentence [Bloomberg report] after the pair were convicted on charges of embezzlement, receiving bribes, forgery and money laundering. Chen was also indicted [JURIST report] shortly after his September life sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008, and was formally indicted [JURIST report] a month later. In January 2009, he unsuccessfully appealed [JURIST report] his pretrial detention, after staging three hunger strikes in protest. Chen maintains that current Taiwanese President Ma Ying-jeou [official website; JURIST news archive] is using Chen's trial to distance himself from Chen's anti-China views. Chen served as president of Taiwan from 2000-2008.




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Rights group asks Supreme Court to suspend 'Don't Ask Don't Tell'
Daniel Makosky on November 6, 2010 12:05 PM ET

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[JURIST] The Log Cabin Republicans (LCR) [advocacy website] on Friday filed a petition [text] asking the US Supreme Court [official website; JURIST news archive] to rescind the stay preventing the suspension of the military's "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The LCR are seeking to overturn the indefinite extension [order, PDF; JURIST report] of a temporary stay [JURIST report] issued by the US Court of Appeals for the Ninth Circuit [official website] earlier this week for the duration of the appeals process, or alternately to temporarily block the military from discharging those in violation of the policy. The group argues that the earlier order is premised on an abuse of discretion that failed to properly consider Lawrence v. Texas [opinion text]. They also contend that the court inaccurately balanced the competing interests involved, saying that "[a]ny alleged harms to the government are entirely bureaucratic, procedural, and transitory in nature, and are sharply outweighed by the substantial constitutional injury that servicemembers will sustain from a stay of the district court's judgment." The Ninth Circuit is not expected to issue a final ruling in the matter until next year.

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. In September, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previously discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.




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Peru judge reinstates parole for US woman held for involvement with rebel group
Daniel Makosky on November 6, 2010 10:32 AM ET

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[JURIST] A Peruvian judge on Saturday reinstated the parole of Lori Berenson [advocacy website], a US citizen held since 1995 for collaboration with a Marxist rebel organization. Berenson has served three-quarters of a 20-year sentence, making her eligible for parole [AFP report]. She must now remain in Peru until the end of her parole, though the government may elect to commute the remainder of her sentence and deport her. 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 carry out an attack on the Peruvian Congress [official website, in Spanish] by gaining access to the body using press credentials.

Berenson was originally granted parole [JURIST report] in May with the judge citing her good behavior, renunciation of violence and completion of rehabilitation. Judges for the court restored her sentence in August, however, after legal authorities failed to verify addresses of residence [JURIST report] provided by Berenson after her release. In 2005, the Inter-American Court of Human Rights [official website] denied an appeal to reinterpret its November 2004 ruling that upheld [JURIST reports] Berenson's conviction. Lawyers for Berenson claimed that her trial failed to meet international standards for fairness and sought to have her conviction and 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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DC Circuit orders further review of Guantanamo detainee release order
Zach Zagger on November 5, 2010 4:23 PM ET

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[JURIST] A three-judge panel for the US Court of Appeals for the District of Columbia Circuit [official website] on Friday ordered further review [opinion, PDF] of a lower court decision to release Guantanamo Bay [JURIST news archive] detainee Mohamedou Olud Slahi [NYT materials], allegedly linked to the 9/11 terrorist attacks. The order vacated US District Court Judge James Robertson's decision to release [JURIST report] Slahi and remanded the case, instructing the court to conduct further review to see if Slahi has abandoned ties to the al Qaeda terrorist group to which he swore an oath of allegiance in the early 1990s. The government argues that Slahi can be detained under the Authorization for Use of Military Force (AUMF) [text, PDF] because he was "part of" al Qaeda when he was captured. The issue was whether, by swearing an oath of allegiance, he was sufficiently part of al Qaeda to allow further detention under Hamdi v. Rumsfeld [opinion, text]. The circuit court ruled that the record was insufficient to make a determination as to whether the US government has met its burden of proof to show that Slahi was a "part of" al Qaeda. Slahi has neither been criminally charged for providing material support to a terrorist organization nor for any connection to the 9/11 attacks.

The circuit court heard oral arguments [JURIST report] on the case in September after the district court had originally ordered Slahi's release in March. The 9/11 commission report said that Slahi was connected to the 9/11 terrorist attacks [Miami Herald report], and he was once considered a key al Qaeda leader with prosecutors seeking the death penalty against him. A prominent government prosecutor stepped down from the case [PBS interview] because he did not support the alleged abusive treatment used against Slahi, which was investigated in a 2008 Senate Armed Services Committee [official website] report [text, PDF].




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Nebraska high court declines to rule on local immigration ordinance
Brian Jackson on November 5, 2010 2:15 PM ET

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[JURIST] The Nebraska Supreme Court [official website] on Friday declined to rule [opinion, PDF] on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants [JURIST news archive]. The US District Court for the District of Nebraska [official website] had asked the court to decide whether Fremont Ordinance 5156 [text], which mandates that renters obtain a permit from the city in order to acquire housing and which prohibits individuals from renting or leasing housing to individuals they know or should know are in the US illegally, violates state law. The court declined to act, saying that there is no need to decide this question because:
the U.S. Supreme Court has held that federal courts are not required to obtain a state court's construction of a state statute or ordinance before deciding a federal constitutional challenge to the law and should not certify such question unless the law is fairly susceptible to a narrowing construction. Also, the Court has held that it is "manifestly inappropriate to certify a question in a case where ... there is no uncertain question of state law whose resolution might affect the pending federal claim."
The city of Fremont has suspended enactment of the ordinance until the district court decides the issue, and the city has raised its property taxes [press release] to fund the court fight.

In September, the US Court of Appeals for the Third Circuit upheld [opinion, PDF] a lower court's ruling that a similar law passed by the town of Hazleton, Pennsylvania, was preempted by federal law [JURIST report]. Immigration issues have come to the fore in the US since the passage of Arizona's controversial SB 1070 [JURIST news archive]. Earlier this week, the US Court of Appeals for the Ninth Circuit heard oral arguments [JURIST report] on the law's constitutionality. The law was passed because of concerns that federal officials were not taking the issue seriously, but the US Department of Homeland Security announced recently that the US deported a record number of illegal immigrants [JURIST report] in 2010.




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Kenya court acquits 17 on piracy charges
Matt Glenn on November 5, 2010 1:27 PM ET

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[JURIST] A magistrate in Mombasa, Kenya, found 17 accused Somali pirates [JURIST news archive] not guilty Friday, ruling that the prosecution failed to prove its case beyond a reasonable doubt. The accused denied involvement [AFP report] in the 2009 attack on the ship the MV Amira. Their lawyer, Jared Magolo, said that the magistrate ruled that the prosecution had insufficient evidence [AP report] and that the magistrate believed that the US Navy [official website] had failed to turn over evidence that may have convicted his clients. According to Magolo, it is not clear what will happen to the men now, as repatriating them to Somalia, which is currently in a state of war, would violate international law.

Earlier this week, a Yemeni court sentenced 10 Somali Pirates [JURIST report] to five years in prison for attacking Yemeni fishing boats. The international community has been supporting actions taken against maritime piracy, but the UN has recently had to call for nations to assist Kenya in conducting piracy trials [JURIST report]. In June, the UN Office on Drugs and Crime (UNODC) announced [JURIST report] that it would spend more than USD $9.3 million to fund courts that prosecute suspected Somali pirates. This action came in response to the Kenyan government's announcement in April that it would no longer accept [JURIST report] Somali pirate cases due to its overburdened legal system. The month of April also saw the UN Security Council approve a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws as well as an announcement from the UN that a trust fund established to combat piracy will be funding five projects [UN News Centre report] in an effort to help Somalia and its neighbors reduce acts of piracy committed in nearby bodies of water.




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US defends rights record at first ever UN review
Brian Jackson on November 5, 2010 12:54 PM ET

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[JURIST] The US government's human rights record came under criticism Friday during the country's first Universal Periodic Review (UPR) by the UN Human Rights Council (UNHRC) [official websites]. Among the criticisms leveled at the US [Reuters report] were the treatment of detainees at Guantanamo Bay, the practice of rendition, the embargo of Cuba and the continued use of the death penalty[JURIST news archives]. Representatives from the US defended the country's record, including the Obama administration's plan to close Guantanamo Bay and its pledge against the use of torture. As part of the UPR, the nation under review submits a report [UPR materials], the UN compiles documentation and interested nations are permitted to submit a list of questions to be answered in the review. The current UPR will continue until November 12, and the next Session will begin in late January.

The US submitted its national report [JURIST report] to the UNHRC in August, and the report included mention of Arizona's controversial immigration law, SB 1070 [JURIST news archive]. The inclusion of that law angered Arizona Governor Jan Brewer, who later wrote to Secretary of State Hillary Clinton requesting the deletion [JURIST report] of that section of the report. The US was elected to the UNHRC [JURIST report] in May 2009. In anticipation of that election and in an effort to secure a seat on the council, the US released a document [JURIST report] in April of that year asserting its commitment to human rights, marking a reversal of the prior administration's stance towards the body. The UNHRC was created [JURIST report] in 2006, at which time the Bush administration declined to seek a Council seat or participate in its proceedings due to a perceived anti-Israeli sentiment.




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UK court begins Iraq detainee abuse hearings
Matt Glenn on November 5, 2010 12:13 PM ET

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[JURIST] A UK High Court in London began hearings Friday to determine whether abuse claims [JURIST news archive] brought by 142 Iraqis against UK military personnel should be subject to public inquiry after Defence Secretary Liam Fox [official profile] refused to open such an inquiry. The Public Interest Lawyers (PIL) [law firm website] group, which represents the Iraqis, submitted videos [BBC report] to support claims that UK soldiers and interrogators [press release] sexually abused detainees, deprived detainees of food and water, threatened to rape detainees' family members and subjected detainees to prolonged solitary confinement, sensory deprivation, forced nakedness and mock executions. The Ministry of Defence (MOD) [official website] opposes a public inquiry, arguing in a blog post [text] that a public inquiry would be too expensive and less effective than the MOD investigation, especially since the MOD has already assembled a team to investigate the claims. PIL reject [Al Jazeera report] the MOD's assertions, however, claiming that the MOD's team lacks independence and that to adequately investigate each claim would take the group over 100 years. The hearings come after a UK High Court ruled [JURIST report] in July that the suit could proceed. The hearings will resume Monday and are expected to end the following day.

In September, an MOD report found that the UK's treatment of detainees complies with domestic and international law [JURIST report]. In July, UK Prime Minister David Cameron [official website] announced that he would create a panel [JURIST report] to investigate claims that British government agents were complicit in the torture of terrorism suspects held overseas. The investigation stems from a civil action, brought by 12 ex-detainees who allege that British agents participated in their abuse while they were held in prisons in Pakistan, Morocco and other countries. The UK will ask them to drop their lawsuits in exchange for possible compensation and a promise that the impending inquiry will fully investigate their claims. In June, the UK government indicated that it will issue a new set of regulations regarding the use of information obtained via torture [JURIST report] as claims of complicity in torture were made against the government in a Human Rights Watch (HRW) [advocacy website] report [materials] released the same day.




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ICTR prosecutor refers 3 cases to Rwanda for trial
Drew Singer on November 5, 2010 11:50 AM ET

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[JURIST] Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) [official website] Hassan Bubacar Jallow [JURIST news archive] filed new applications [press release] Thursday for the referral of three cases for trial in Rwanda. The first was Jean-Bosco Uwinkindi [case materials], a former Rwandan pastor who pleaded not guilty [JURIST report] in July to charges of genocide and crimes against humanity relating to the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. The second application was for Fulgence Kayishema [case materials; JURIST report], who was a police inspector during the war and has been charged with conspiring to exterminate Tutsis during the Hutu-led uprising, which left around 800,000 Tutsi and moderate Hutus dead. The last application was for Charles Sikubwabo [case materials], former Bourgmestre of Gishyita, Kibuye Prefecture. Sikubwabo is facing similar charges as Kayishema. Jallow filed applications for the referral of these cases to Rwanda for trial in 2007, but the applications failed because the trial chambers were worried that the defendants would not receive fair trials as a result of some of the laws at the time.

Last month, representatives from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICTR appeared before the UN General Assembly to request additional financial resources [JURIST report] and institutional support on behalf of the various war crimes tribunals. In June, the ICTR transferred [JURIST report] the cases of 25 suspects to Rwandan authorities. The suspects, who have been investigated but not yet indicted by the ICTR, are believed to be in hiding abroad. The transfers are a part of the strategy intended to finish [completion strategy text, PDF] the court's trial work by 2011. Rwandan Prosecutor General Martin Ngoga told the UN Security Council last year that the decisions by the ICTR not to transfer pending cases to Rwandan jurisdiction, including genocide suspects Jean-Baptiste Gatete and Yussuf Munyakazi [case materials] undermines judicial reforms [JURIST report] and hinders national reconciliation.




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Oklahoma Islamic law ban challenged
Daniel Makosky on November 5, 2010 10:38 AM ET

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[JURIST] The Oklahoma chapter of the Council on American-Islamic Relations (CAIR) [advocacy websites] filed a lawsuit [text, PDF; press release] Thursday challenging the constitutionality of State Question 755 [text], which amends the state constitution [text] to ban the use of Islamic or international law in state court decisions. The suit, filed in the US District Court for the Western District of Oklahoma [official website], seeks to block the Oklahoma State Board of Elections [official website] from certifying this week's election results, which approved the measure [JURIST report] by a vote of 70 to 30 percent [unofficial results]. CAIR argues that the law violates the Establishment Clause [Cornell LII backgrounder] of the First Amendment. The law would prevent Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures," requiring them only to look to legal precedents of other states for guidance, provided that state does not use Islamic law.

The law was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. The necessity of the amendment has been questioned [CNN report] due to the fact that the use of Islamic law in US courts would likely violate the First Amendment prohibition on laws respecting an establishment of religion.




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13 states file brief supporting Arizona immigration hiring law
Daniel Makosky on November 5, 2010 9:25 AM ET

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[JURIST] Missouri Attorney General Chris Koster (D) [official profile] announced Thursday that he, along with 12 other state attorneys general, has filed an amici curiae brief [press release] before the US Supreme Court [official website; JURIST news archive] supporting an Arizona statute that imposes sanctions on employers that hire illegal immigrants [JURIST news archive]. In Chamber of Commerce v. Whiting [docket; JURIST report], the court will determine whether the Legal Arizona Workers Act (LAWA) [materials] is preempted by federal law. Koster contends that the statute is valid under the Immigration Reform and Control Act of 1986 [text], which authorizes states to license businesses and penalize those that violate hiring regulations. A decision invalidating the policy would significantly impede states' abilities to enforce their business and immigration laws, according to Koster. Oral arguments in the case are scheduled for next month.

The US Court of Appeals for the Ninth Circuit [official website] upheld [opinion, PDF; JURIST report] the statute in 2008 on the basis that it is a licensing law, which exempts it from being preempted by federal law. The court also concluded that the LAWA reflects the "rising frustration with the United States Congress's failure to enact comprehensive immigration reform," and did not overstep the state's authority to regulate immigration. Earlier this week, the Ninth Circuit heard oral arguments [JURIST report] on Arizona's more recent controversial immigration law [SB 1070 materials; JURIST news archive]. The state's representatives argued that Arizona is on the front line of human and drug trafficking from Mexico, and the law is meant to assist with the enforcement and implementation of federal immigration law when the federal government is either "unable or unwilling to solve the problem. The federal government cautioned that allowing states to create immigration policy could create a patchwork system and potentially harm foreign relations.




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Guatemala president vetoes legislation reinstating capital punishment
Megan McKee on November 5, 2010 8:42 AM ET

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[JURIST] Guatemalan President Alvaro Colom [official profile, in Spanish] vetoed legislation [press release, in Spanish] Thursday that would have reinstated the death penalty. Colom has stated that his government does not believe capital punishment improves a nation's security and has called on the Guatemalan Congress [official website, in Spanish] to abolish [DCA report, in Spanish] capital punishment permanently. Legislative Decree 37-2010 [AI backgrounder] would have reinstated the death penalty while reserving to the executive the power to commute death sentences to a prison term of up to 50 years. Some legislators, unhappy with the veto, have said they will try to establish a super-majority to override the decision. In 2002, then-president Alfonso Portillo directed the Constitutional Court [official website, in Spanish] to suspend the death penalty in Guatemala. The Constitutional Court granted the moratorium, stating that it was Congress' job to amend the law. A number of Guatemala prisoners on death row have been in limbo since the imposition of the moratorium.

In 2008, Colom vetoed a similar bill [JURIST report]] that would have restored the country's death penalty. Decree 06-2008 [AI backgrounder] would also have given Colom the power to decide whether to grant clemency and commute the sentences of the 34 inmates currently on death row to 50 years in prison, or to order their executions to take place. In vetoing the measure Colom said cases in the US showed that the death penalty did not deter crime and that strengthening security institutions was the best way to fight crime in Guatemala. Last month, protesters across the globe marked the 8th World Day against the Death Penalty [JURIST report], specifically urging the US, Iran and China to end the death penalty.




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ICTY delays Karadzic trial for one month
Sarah Posner on November 4, 2010 2:25 PM ET

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[JURIST] The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday suspended [press release] the trial of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] for a month. The postponement allows Karadzic to read 14,000 pages of evidence the prosecution sent to him in October. Karadzic faces 11 war crimes charges, including counts of genocide and murder, for alleged crimes he committed during the 1992-1995 war in Bosnia and Herzegovina. Karadzic is defending himself in court and has denied all of the charges against him. The court's decision to delay the trial is partially because of the prosecution's repeated violations of its obligation to disclose evidence to the accused. The ICTY's press release states:
Having already admonished the Prosecution in those previous decisions to better organise and give greater priority to its disclosure processes, Judge Kwon stated that the Chamber was increasingly troubled by the potential cumulative effect of late disclosure on the overall fairness of the trial.
The trial's suspension will take affect after the witnesses already at The Hague or in transit have the chance to testify in court.

In September, the trial resumed [JURIST report] as Karadzic defended himself before the ICTY after repeated attempts to delay proceedings. The trial previously resumed in April [JURIST report], after the ICTY denied [judgment PDF, JURIST report] Karadzic's attempt [motion, PDF] to delay court proceedings, in which he argued a violation of his right to a fair hearing due to the court's rejection of evidentiary challenges. In March, Karadzic lost another motion to postpone his war crimes trial for charges committed during the Bosnia conflict. Following repeated delays in the proceedings, the ICTY judges warned in September that the trial might continue until 2014 [JURIST report], which is two years longer than expected.




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UK PM announces review of intellectual property laws
Megan McKee on November 4, 2010 1:21 PM ET

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[JURIST] UK Prime Minister David Cameron [official website] announced Thursday that Britain's intellectual property laws will undergo a review with an eye towards modernization, in an effort to encourage innovation and small business. Cameron suggested that the law may be reformed [BBC report] in order to allow for increased use of copyright material without the owner's permission. The review is set to take place over six months and will examine the interaction between intellectual property and competition law, how to remove barriers for small businesses, and how to help small businesses protect and exploit their intellectual property, and it will take into account more relaxed US rules on copyright material, including rules on the use of copyright material without the owner's permission. In April, the review will issue a report recommending changes to UK law and suggesting long-term goals for the government. The announcement, seen as an attempt to restore balance after the controversial Digital Economy Bill [text], has been cheered by Internet freedom campaigners and small businesses alike. However, reforms may be resisted by the music and film industries.

In April, the UK Parliament [official website] approved the Digital Economy Bill [JURIST report], authorizing the suspension of Internet service for those who repeatedly download copyrighted material illegally. The act also received Royal Assent [text] and is now law. The new law calls on Internet service providers (ISPs) to block download sites, reduce a user's broadband speeds and ultimately shut down a user's Internet access in order to prevent piracy of copyrighted materials. The bill, known as a three-strikes law, imposes stricter penalties on repeat digital offenders than had previously existed, and has received a great deal of public criticism. Certain ISPs have even threatened not to comply with the law, but MPs who support it say it is a necessary step to protect the creators of digital content.




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Federal prosecutors charge 3 men with funding Somalia terrorist organization
Aman Kakar on November 4, 2010 12:52 PM ET

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[JURIST] The US District Court Eastern District of Missouri [official website] on Wednesday unsealed an indictment [text, PDF] charging three men with providing material support to Somali-based Islamic terrorist organization al Shabaab [CFR backgrounder; JURIST news archive]. The October 21 indictment charges Mohamud Abdi Yusuf, Duane Mohamed Diriye and Abdi Mahdi Hussein with funding and providing materials to a known terrorist organization. The federal grand jury charged Yusuf and Hussein with allegedly transferring funds through a Minneapolis wire-transfer business where Hussein was employed to al Shabaab supporters in Somalia from 2008 to July 2009. The indictment details the care the men took to avoid detection, often breaking up transfers into smaller amounts and using code words. Diriye, who is believed to be in Kenya or Somalia, was charged with collecting the funds for al Shabaab. The indictment also mentions unspecified individuals who were allegedly complicit in the conspiracy to provide funding to the organization. Federal agents arrested [AP Report] Yusuf on Monday in St. Louis and Hussein on Tuesday in Minneapolis. Both men appeared in court on Tuesday. Hussein has since been released on bond. The indictments were unsealed the day after three other men were charged [indictment, PDF] in San Diego with providing support to al Shabaab.

The government has increasingly targeted financial transactions in an effort to dry up funding for terrorist organizations. In September, a New York man was charged with providing funds [JURIST report] to a man who attempted in May to detonate a car bomb in Times Square. The indictment alleges that Mohammad Younis unknowingly transferred funds to individuals, including Faisal Shahzad [BBC profile; JURIST news archive], through hawala, a "value transfer system in which money does not physically cross international boundaries through the banking system." In August, the US Department of Justice (DOJ) [official website] announced that 14 individuals had been charged with providing money and funding to al Shabaab [JURIST report]. In April 2009, an Afghan man was charged financing terrorist activity [JURIST report]. Haji Juma Khan, who was already detained on charges of narco-terrorism, was accused of providing the Taliban [JURIST news archive] with proceeds from his drug operation with knowledge that the money would be used in terrorist activities in Afghanistan.




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Federal judge dismisses claims challenging drilling moratorium
Maureen Cosgrove on November 4, 2010 12:13 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of Louisiana [official website] on Wednesday dismissed claims challenging the Obama Administration's moratorium on deepwater drilling, which was enacted following the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. US District Judge Martin Feldman said that the claims filed by drilling companies against US Interior Secretary Ken Salazar [official profile] are no longer relevant [Bloomberg report] because both moratoriums have been lifted. Salazar announced in October [JURIST report] that the six-month moratorium on certain types of deepwater oil drilling would come to an end [press release] some seven weeks ahead of schedule. In announcing the lifting of the moratorium, Salazar said that new drilling regulations enacted in October [JURIST report] and industry safety strategies developed in the wake of the oil spill have reduced the likelihood of future incidents such that the ban was no longer needed. Feldman did not rule on additional claims filed by against the government, which allege that federal regulators have delayed the granting of permits under the new regulations and that new regulations requiring permits exceed the authority of the administrators. The government has indicated that permits will be granted when drilling companies comply with the stated standards [NYT report]. The court is scheduled to address the remaining claims later this month.

In September, Feldman denied [order, PDF; JURIST report] the government's motion to dismiss a lawsuit filed by Hornbeck Offshore Services [corporate website] and several other drilling companies challenging the government's most recent moratorium on offshore drilling. The second moratorium directive was issued in July [JURIST report] by Salazar after the district court and the US Court of Appeals for the Fifth Circuit [official website] granted an injunction [JURIST report] against the government's initial directive. Earlier in July, the Obama administration asked a federal appeals court to reinstate the original six-month drilling moratorium [JURIST report], arguing that the ban should be upheld because the government would likely win its appeal of the lower court's ruling. In June, the US Department of Justice (DOJ) [official website] asked the court of appeals to stay the preliminary injunction of the original moratorium [JURIST report] on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the spill with catastrophic results. Lawyers for the DOJ also claimed that that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil leaked from the rig's broken pipe causing the spill to surpass the Exxon Valdez [JURIST news archive] as the worst oil spill in US history.




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Afghanistan AG opens voter fraud investigation
Andrea Bottorff on November 4, 2010 11:33 AM ET

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[JURIST] Afghanistan's Attorney General's (AG) office announced Wednesday it will investigate possible voter fraud committed by the country's election commission after the parliamentary election [IEC backgrounder] held in September. A deputy attorney general said that the office has received complaints [WP report] that election officials working for the Independent Election Commission (IEC) [official website], which is responsible for investigating complaints of voter fraud in the country, allegedly tampered with voting results. The AG's office expressed concern that the IEC did not provide sufficient reason for last month's invalidation of 1.3 million votes, constituting nearly one-fourth of the 5.6 million votes cast nationwide [AP report]. The ballots were thrown out [JURIST report] due to alleged findings by the IEC that the 2,543 polling stations involved did not follow IEC procedures. The new investigation may also involve a second Afghan election monitoring organization, the Electoral Complaints Commission (ECC) [official website], which is also responsible for invalidating ballots [media release, PDF] and disqualifying political candidates. IEC officials argue that the AG's office does not have authority to investigate voting fraud [CP report], but the AG's office emphasized their responsibility to investigate crime and eliminate corruption.

The election was held in September after being postponed by four months [BBC report] due to logistical and security concerns and was contested by 2,500 candidates competing for the 249 seats in the Wolesi Jirga, the lower house of the Afghan parliament. Following the disputed 2009 presidential election [JURIST news archive], the ECC invalidated results from 210 polling stations [JURIST report]. The ECC found clear and convincing evidence of fraud and also ordered the IEC to invalidate a percentage of votes from both candidates. In April, Karzai blamed foreign officials for the extensive irregularities [JURIST report] that occurred during the presidential election. Though admitting that fraud was widespread, Karzai accused UN and EU representatives of attempting to influence vote counts. In November 2009, Karzai was declared the winner of the election [JURIST report] after challenger Abdullah Abdullah [BBC profile] withdrew from the runoff election due to his belief that a free and fair vote was impossible.




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EU calls for stronger Internet privacy laws
Drew Singer on November 4, 2010 10:36 AM ET

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[JURIST] The European Commission [official website] on Thursday released a 20-page document [text, PDF] outlining recommendations for stronger Internet privacy laws. The recommendations come after a review of its 15 year-old privacy laws [WP report]. The document addresses issues including "improving the coherence of the data protection legal framework," "enhancing control over one's own data" and "ensuring informed and free consent." If followed, the proposed measures could make it easier for people to delete information about themselves on the Internet and increase enforcement for websites that breach their users' privacy. The writers also argued for why the new measures are necessary:
Like technology, the way our personal data is used and shared in our society is changing all the time. The challenge this poses to legislators is to establish a legislative framework that will stand the test of time. At the end of the reform process, Europe's data protection rules should continue to guarantee a high level of protection and provide legal certainty to individuals, public administrations and businesses in the internal market alike for several generations. No matter how complex the situation or how sophisticated the technology, clarity must exist on the applicable rules and standards that national authorities have to enforce and that businesses and technology developers must comply with. Individuals should also have clarity about the rights they enjoy.
Next year, the Commission will propose legislation aimed at revising the legal framework for data protection, the report says.

In September, the Commission announced that it would refer the UK to the European Court of Justice for not fully complying with EU regulations [JURIST report] that protect the privacy of electronic communications. The EU has found UK law in breach of the ePrivacy Directive 2002/58/EC and the Data Protection Directive 95/46/EC [texts], regulations regarding consent to interception and the role of enforcement and supervisory committees. Specifically, current UK law does not provide for an independent national authority to supervise the interception of some communications, it allows for communications to be received without fulfilling the EU definition of consent and it does not have a mechanism that ensures sanctions for unlawful unintentional interception, as required by EU law. The EC formally notified [JURIST report] the UK in April 2009 that it was starting infringement proceedings for failure to follow EU Internet privacy and data protection rules.




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Serbia president apologizes for Croatia war crimes
Jay Carmella on November 4, 2010 9:22 AM ET

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[JURIST] Serbian President Boris Tadic [official website, in Serbian; JURIST news archive] apologized [press release, in Serbian] Thursday for Serbian war crimes during a visit [schedule, in Serbian] to Croatia. Tadic and Croatian President Ivo Josipovic [official website, in Croatian] together visited a memorial in Vukovar [BBC backgrounder; JURIST news archive], where Serbian forces murdered 260 Croatians in November 1991. Tadic said, "I came here to offer an apology and express regret." Tadic becomes the first Serbian president to visit the site [BBC report], as the two countries continue to try to find ways to improve relations. Josipovic and Tadic plan to later visit the site where 18 Serbian villagers were killed by Croatians. Opposition in both countries criticized the visit, calling it nothing more than a political stunt and meaningless.

The challenge of improving the relationship between Serbia and Croatia remains difficult, even as leaders in both countries seem committed to the effort. In August, Croatian authorities extradited Sretko Kalinic to Serbia for his connection with the 2003 assassination [JURIST reports] of former Serbian prime minister Zoran Djindjic [BBC obituary; memorial website, in Serbian]. However, the continuing attempt to find all individuals responsible for the atrocities has created a new political tension [JURIST comment] in the region that will not soon go away. In January, the Serbian government filed a lawsuit [JURIST report] against Croatia in the International Court of Justice (ICJ) [official website], accusing the Croatian government of committing genocide during the 1991-1995 Balkan War [JURIST news archive]. The suit was in response to a similar suit [case materials] filed by Croatia against Serbia in 1999.




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Google announces settlement in 'Buzz' privacy class action lawsuit
Erin Bock on November 4, 2010 8:47 AM ET

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[JURIST] Internet company Google [corporate website; JURIST news archive] announced Tuesday that it has reached a settlement [text, PDF] in a class action lawsuit regarding privacy breaches relating to its Google Buzz social networking program. The settlement is in response to a complaint [text, PDF] filed in July alleging that the Buzz application within Gmail exposed private user data, including contact lists, to other Gmail users. Under the settlement, Google will place $8.5 million dollars into a common fund to distribute to organizations that provide education regarding Internet privacy. Google sent out a notice [text, PDF] to all of its Gmail users notifying them of the terms of the settlement and stressing that the settlement does not provide for payment of damages to individual users. The notice advised users that they could opt-out of the settlement by December 6 to pursue further litigation or choose to be included and forfeit that right. The US District Court for the Northern District of California [official website] will hold a fairness hearing regarding the settlement on January 31, and users also have the option to contact the court with objections or ask to speak at the hearing. Class members include any Gmail users who were given the opportunity to use Buzz before November 2. Google stressed that the settlement did not mean that the company was admitting liability for the privacy breach and that the company has since resolved all privacy issues with the Buzz application.

Google has also recently come under investigation for privacy breaches relating to its Street View program. On Wednesday, the UK Information Commissioner's Office (ICO) [official website] announced that the company committed a "significant breach" [JURIST report] of the country's Data Protection Act [text] when Street View vehicles inadvertently collected personal information over WiFi networks including passwords, e-mails and URLs. Last week, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Last month, Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that the Street View breach violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF]. In July, Australian authorities completed their investigation [JURIST report] into Google's collection and storage of private data, concluding that the company violated the Australia Privacy Act [government backgrounder]. In August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] after accusing Google of illegally acquiring user data. Spain also announced in August that it was launching an investigation [JURIST report] into potential violations of the country's privacy law.




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Supreme Court takes up Arizona school tuition case
Jaclyn Belczyk on November 3, 2010 3:59 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard