December 2010 Archives


Texas challenges EPA emissions rule
Matt Glenn on December 31, 2010 10:56 AM ET

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[JURIST] The state of Texas filed a petition [text, PDF; press release] Thursday in the US Court of Appeals for the DC Circuit [official website] asking the court to overturn rules limiting greenhouse gas emissions [JURIST news archive] set to go into effect January 2. The petition challenges the legality [Houston Chronicle report] of a rule [75 CFR 82430 text] enacted Thursday by the Environmental Protection Agency (EPA) [official website] partially reversing its approval of the state's Prevention of Significant Deterioration Program (PSD) under the Clean Air Act [EPA backgrounders]. The new regulation effectively transfers licensing power [WSJ report] from the state of Texas to the EPA. The petition argues:
The Partial [State Implementation Plan] Disapproval is contrary to both the Clean Air Act and the fundamental principles of administrative law. Recognizing the proper role of the States, the Clean Air Act declares pollution prevention to be "the primary responsibility of States and local governments," and not the federal government. EPA rejects that approach and seeks to deprive Texas of its right to manage its air resources. The Partial SIP Disapproval is particularly pernicious because it unlawfully attempts to partially disapprove Texas' environmental laws in the face of the State's admirable track record of reducing pollution and improving air quality in the State. Instead, EPA seeks to federalize that power by imposing federal control and commandeering critical portions of Texas' emissions permitting program.
Texas asked the court to stay implementation of the rule [motion for stay, PDF] pending review of the rule. Texas is the only state that has not agreed to implement [NYT report] new greenhouse gas emissions rules. Also on Thursday, the United States Court of Appeals for the Fifth Circuit [official website] denied a request by Texas [AP report] to stay the implementation of the new rules regulating emissions.

Earlier this month, California's Air Resources Board [official website] approved measures that will provide incentives [JURIST report] to companies and factories that decrease their greenhouse gas emissions. In June, the US Senate [official website] defeated a resolution [materials; JURIST report] aimed at limiting the ability of the EPA to regulate greenhouse gas emissions under the Clean Air Act. The US Supreme Court [official website; JURIST news archive] affirmed the EPA's ability to regulate carbon emissions under the Clean Air Act in its 2007 ruling in Massachusetts v. Environmental Protection Agency [Cornell LII backgrounder; JURIST report]. In its ruling, the court held that if the EPA could show a link between greenhouse gas emissions and public health and welfare, then the act gives it the power to regulate emissions. The EPA announced last December [JURIST report] that it had found that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution. The EPA first announced its proposed finding [JURIST report] in April 2009 before undertaking a 60-day public comment period. Some have suggested that the EPA findings have allowed Congress to avoid the political fallout [JURIST comment] that could come from passing tough climate legislation.




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Thai protesters sentenced for 2008 television station takeover
Matt Glenn on December 31, 2010 10:50 AM ET

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[JURIST] The Bangkok Criminal Court sentenced 84 members of Thailand's People's Alliance for Democracy Network (PAD) [party website, in Thai; BBC Backgrounder], known as the "yellow shirt" movement, to between six and 30 months in prison Thursday for their roles in a 2008 invasion of a Thai television station. The convictions [Channel News Asia report] are among the first handed down to yellow shirts, though prosecutors did not charge any party leaders. Those convicted were involved in a 2008 attack [TNA report] on the government-owned National Broadcasting Service of Thailand (NBT) [media website, in Thai] where they threatened employees and shut the station down for a few hours. The yellow shirts attacked the station as part of their protests against then-prime minister Samak Sundaravej [BBC profile], an ally former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who was deposed in a 2006 coup [JURIST report]. Yellow shirt opponents have criticized the government [BBC report] for not prosecuting more yellow shirts for violence during the 2008 demonstrations. Last week, Thailand lifted a state of emergency [BBC report] that had been in effect for eight months following protests by members of the United Front for Democracy Against Dictatorship [party website, in Thai], known as red shirts, last spring.

In September, a Thai court convicted two former yellow shirt television personalities [JURIST report] of defaming Thaksin by accusing him of insulting the monarchy. In August, red shirt leaders pleaded not guilty [JURIST report] to inciting violence and threatening government officials during a week of violence in May. In June, the Thai government indicated it would study the possibility of extending amnesty to red shirt protesters [JURIST report] convicted of minor offenses in order to facilitate reconciliation within the country. The offer of amnesty would not be given to the protesters charged with terrorism but could be extended to the 27 red shirt protesters who were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. The protests came to an end [JURIST report] in May when red shirt leaders surrendered to police, which led to rioting, arson and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas. The red shirts are supporters of ousted prime minister Thaksin. The yellow shirts ended their protests in 2008 and released two airports they had taken over [JURIST reports] after Thailand's Constitutional Court ordered a dissolution of the ruling government and removed prime minister Somchai Wongsawat.




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China executes top corruption official for taking bribes
Eryn Correa on December 31, 2010 10:36 AM ET

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[JURIST] A former Chinese corruption official was executed on Thursday for accepting more than 4.7 million USD in bribes. Zeng Jinchun, a chief inspector for the ruling Communist Party of China (CPC) [official website] in the central province of Hunan, accepted bribes in return for mining contracts and job promotions over a decade, ending in 2006. In addition to his conviction on charges of bribery, Zeng was also found guilty of not being able to account for some of his assets. Zeng was sentenced to death [Xinhua report] by the Intermediate People's Court of Changsha City in 2008 and he was executed by firing squad after an appeals court rejected his appeal and the Supreme People's Court (SPC) [official website] approved the execution. Zeng's execution came one day after Beijing officials pledged to crack down on corruption [JURIST report] in the country.

This execution is a continuation of the Chinese government's on-going battle against what is perceived to be pervasive corruption [JURIST news archive] in official channels. In September, a member of the National People's Congress [official website] announced that the government never considered removing the death penalty [JURIST report] as a punishment for corruption during the consideration of an amendment to the criminal code. In July, the Chinese government executed a top judicial official [JURIST report] after a corruption probe in the southwestern city of Chongquing revealed he had taken nearly 2 million USD in bribes and had been protecting a number of organized crime gangs. In March, the Hebei Province People's High Court upheld a life sentence for former vice president of the SPC, Huang Songyou, who had been convicted [JURIST reports] of bribery and embezzlement. Earlier that month, the SPC president 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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UN urges parties to prevent ethnic crimes in post-election Ivory Coast
Daniel Richey on December 30, 2010 7:04 PM ET

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[JURIST] Officials from the United Nations [official website] on Thursday urged all parties to the disputed presidential election in the Ivory Coast [JURIST news archive] to honor the country's commitment to prevent genocide, crimes against humanity and ethnic cleansing under the 2005 World Summit Outcome Document [text, PDF]. Special Adviser to the Secretary-General on the Prevention of Genocide Francis Deng [official profile] and Edward Luck [academic profile], the Special Adviser focusing on the responsibility to protect, expressed concern [press release] at the mounting threat of ethnic violence in the wake of incumbent President Laurent Gbagbo's refusal to leave office after his defeat by challenger Alassane Ouattara [BBC profiles]. Deng called allegations that the homes of Gbagbo's political opponents have been marked with their occupants' ethnicity "extremely worrying." Also on Thursday, UN Secretary General Ban Ki-Moon said that he was deeply alarmed [press release] by reports that one of Gbagbo's supporters has ordered a sympathetic youth political movement, the Young Patriots [advocacy website, in French] to attack the hotel where UN Ivory Coast Operation (UNOCI) [official website] peacekeepers are guarding president-elect Ouattara, on January 1. A spokesperson for the UN Office of the Secretary General [official website], Martin Nesirky, affirmed the UNOCI's willingness to "use all necessary means" to enforce international law:
The Secretary General remains very concerned about the deteriorating situation in the Ivory Coast.... The Secretary General wishes to warn that any attack against peacekeepers constitutes a crime under international law, for which the perpetrators and those who instigate them will be held accountable. Any attack on the Golf Hotel could provoke widespread violence that could reignite civil war. The Secretary General calls on all those who may be contemplating participation in the attack to refrain from such dangerous and irresponsible action.
Youssoufou Bamba, Ouattara's newly appointed ambassador to the UN characterized the West African nation as being on the brink of genocide [Reuters report].

During the post-election violence in the Ivory Coast, hundreds have been arrested and dozens have allegedly been subjected to torture, ill treatment and forced disappearances. Last week, the United Nations Refugee Agency (UNHCR) [official website] expressed concern [press release; JURIST report] over the humanitarian needs of nearly 14,000 Ivory Coast refugees who have fled to Liberia over the past month due to post-election political instability and violence. The UNHCR warned that food supplies and housing are running short as refugees are increasingly arriving malnourished and fighting disease. Ouattara defeated Gbagbo in a November 28 runoff election, but Gbagbo has refused to concede victory, his supporters have responded to his loss in the election with a campaign of violence and intimidation [WP report]. Earlier in December, the Economic Community of West African States (ECOWAS) [official website] urged [JURIST report] Gbagbo to step down, threatening the use of force if he attempts to maintain power. Also in December, the UN Human Rights Council [official website] adopted a resolution [JURIST report] condemning recent post-election violence while Ouattara's prime minister Guillaume Soro [BBC profile] called on the International Criminal Court (ICC) [official website] to launch an investigation [DPA report] into possible crimes being committed by Gbagbo's supporters.




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Khodorkovsky sentenced to six additional years
Daniel Richey on December 30, 2010 3:45 PM ET

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[JURIST] The Khamovnichesky District Court [official website, in Russian] in Moscow on Thursday sentenced former Russian oil executive Mikhail Khodorkovsky [defense profile; JURIST news archive] and his business partner, Platon Lebedev [defense profile], to six additional years in prison, extending their imprisonment to a total of 14 years. The imposition of the maximum possible sentence has stoked international criticism [Deutsche Welle report] of what has been viewed by many as a politically-motivated abuse of the law [AI report] orchestrated by the men's enemies in the Kremlin. U.S. State Department [official website] representative Mark Toner expressed continued concern [Reuters report] over apparent abuses of due process in Khodorkovsky's trial, particularly in light of the severity of the verdict. Russian human rights activist Lev Ponomarev, head of the All Russia Movement for Human Rights [advocacy website, in Russian], called [press release, in Russian] the sentence "monstrous and farcical ... shatter[ing] faith in judicial reform and the possibility of an evolutionary transition to the rule of law." Critics have characterized the entire trial as politically motivated [JURIST op-ed] retaliation for Khodorkovsky's opposition to Russian prime minister Vladimir Putin [official website; JURIST news archive].

Khodorkovsky, the former owner of Yukos oil, and Lebedev, were convicted [JURIST report] of embezzling more than $27 billion [AFP report] from the company. Their defense counsel staunchly criticized the ruling, claiming [press release] that the court blocked significant amounts of testimony and evidence submitted by the defense and systematically quashed objections to their omission. The verdict drew vehement international criticism [JURIST report], including from U.S. Secretary of State Hillary Clinton [official biograpy], who said [press release] that the ruling "raises serious questions about selective prosecution." The Russian Ministry for Foreign Affairs [official website, in Russian] dismissed critics, saying [press release, in Russian] that "[a]ttempts to exert pressure on the court are unacceptable." The men are currently serving eight-year prison sentences for fraud and tax evasion [JURIST report], to which they were sentenced in 2005 for the same money laundering from Yukos. In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that Putin ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. In March, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty. The statement echoed concerns Khodorkovsky had previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].




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Former Israel president convicted of rape
Eryn Correa on December 30, 2010 11:32 AM ET

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[JURIST] Former Israeli President Moshe Katsav [BBC profile] was convicted of two rape charges on Thursday, following his decision to rescind an earlier plea bargain. A Tel Aviv court found him guilty of assaulting a female employee of the Tourism Ministry during his time as Minister, and two women at the President's Residence during his time as President. Katsav resigned his position as President in 2007 due to the sexual assault allegations. The Tel Aviv District Court [official website, in Hebrew] found that Katsav's defense was "riddled with lies" [Haaretz report], including edited tapes of the women's testimony and falsely prepared datebooks. Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] said that the ruling sent two clear messages [CNN report] "about the equality of all before the law and about a woman's right concerning her own body." The conviction ends a four-year legal battle that has Katsav facing between 4 and 16 years in prison. Lead attorney Avigdor Feldman said that Katsav plans to appeal [Ynet report] the ruling to the Supreme Court of Israel [official website, in Hebrew].

Katsav was initially indicted on rape charges [JURIST report] in 2009 for allegedly assaulting female employees in the 1990's. In 2008, Katsav rejected a plea agreement [JURIST report] that would have permitted him to plead guilty to lesser charges of indecent assault, sexual harassment, and obstruction of justice, in exchange for a suspended sentence and the dropping of rape charges. The plea deal had been highly criticized by women's and civil rights activists, prompting 5 separate petitions to overturn the agreement.




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US denies Poland request for assistance in secret CIA prison investigation
Aman Kakar on December 29, 2010 1:28 PM ET

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[JURIST] The Helsinki Foundation for Human Rights [advocacy website] announced Tuesday that the US government has refused to provide legal cooperation to Polish prosecutors investigating whether Saudi terror suspect Abd al-Rahim al-Nashiri [NYT profile, JURIST news archive] was tortured in a secret CIA prison [JURIST news archive] in Poland. According to the letter sent by Polish prosecutors to the Helsinki Foundation, the US government denied the March 2009 request [AFP report] on the basis of a bilateral agreement on the protection of state interests [AP report]. Polish prosecutors granted al-Nashiri victim status [JURIST report] in October, recognizing validity of his claims that he was mistreated by interrogators. Al-Nashiri remains a detainee at Guantanamo Bay [JURIST news archive], despite an announcement last month by the Obama administration that charges against him are not pending [JURIST report] or being considered. The Pentagon formally dropped charges [JURIST report] against al-Nashiri in February 2009, effectively ending his prosecution under the Military Commissions Act of 2006 [text, PDF].

Polish prosecutors opened an investigation into the alleged mistreatment of al-Nashiri in September in response to the request [JURIST reports] filed by human rights group Open Society Justice Initiative (OSJI) [advocacy website] and al-Nashiri's lawyers. OSJI stated that the filing represents the first attempt by an extraordinary rendition [JURIST news archive] victim to pursue a legal remedy within the Polish court system. The commencement of the investigation came one week after former Polish prime minister Leszek Miller denied any knowledge [JURIST report] of a secret CIA prison in Poland and indicated that he would not discuss allegations of torture until the Polish government's investigation is complete. Earlier this month, lawyers for Guantanamo detainee Abu Zubaydah asked Polish prosecutors [JURIST report] to investigate claims that Zubaydah was abused in the secret CIA prison, hoping Zubaydah's investigation would be done in conjunction with al-Nashiri's investigation. Allegations against Poland were first raised in a June 2007 report [text; JURIST report] to the Council of Europe [official website] by Swiss Senator Dick Marty. The report concluded that numerous European governments had cooperated with the CIA secret prison program. In February 2007, the European Parliament condemned more than a dozen European states [JURIST report] for their roles in the program. Several nations have been accused of obstructing European probes into the secret prison allegations, including Poland [JURIST report], which allegedly housed the largest CIA detention facility in Europe [JURIST report].




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Kazakhstan parliament approves plan for presidential term extension referendum
Carrie Schimizzi on December 29, 2010 1:15 PM ET

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[JURIST] Both houses of the Kazakhstan Parliament [official website] on Wednesday agreed to hold a referendum proposing to extend the term of President Nursultan Nazarbayev [official website; BBC profile] to 2020, bypassing two presidential elections. Nazarbayev's current term is set to expire in 2012 [AP report]. If he continues to rule until 2020, Nazarbayev will have been in power in the country for 30 years. Supporters of the referendum maintain that it is necessary [Interfax report] in order to ensure that Nazarbayev can continue to address issues facing the country. They also indicated that continuity of government is necessary for the country's continued growth. Opposition parties to the referendum claim Nazarbayev's political party is attempting to eliminate any political competition [Reuters report]. The referendum will reportedly take place as early as March 2011.

In June, Nazarbayev announced during a local TV broadcast that he would not sign a controversial law [JURIST report] that would grant him several presidential powers for life, even if he stepped down from office. Nazarbayev's supporters believed that the president has earned such protections due to his ability as a nation builder. Opponents had urged the president not to sign the bill. The draft law moved quickly through Kazakhstan's parliament in May, with the upper and lower houses [JURIST reports] approving the bill in under a week. The amendment has been criticized both internationally and domestically with opponents accusing Nazarbayev's supporters of trying to install a constitutional monarchy. In 2007, Nazarbayev approved a constitutional amendment [JURIST report] removing term limits on his own presidency, effectively allowing him to remain president for life. Under the amendment, subsequent presidents will have to abide by the law limiting them to two terms in office. The amendment also reduced presidential terms from 7 years to 5.




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Microsoft co-founder re-files patent suit
Carrie Schimizzi on December 29, 2010 1:02 PM ET

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[JURIST] Microsoft co-founder Paul Allen on Tuesday filed an amended patent infringement complaint [complaint, PDF] against Apple, eBay, Google [corporate websites] and eight other corporations claiming the companies misappropriated technologies patented by Allen's now defunct Interval Research Corporation and currently held by Interval Licensing, LLC. The original lawsuit was dismissed [JURIST reports] earlier this month for vagueness by a judge for the US District Court for the Western District of Washington [official website]. The amended complaint identifies over 40 products and devices [CNet Report], such as Google Desktop, Apple iTunes and Facebook [corporate websites] alerts, that allegedly infringe upon Allen's four patents. The eight other corporations named in the complaint include AOL, Facebook, Netflix, Office Depot, Office Max, Staples, Yahoo and YouTube [corporate websites]. The suit alleges that the defendants infringed on a patent that recommends like content to users based on real-time viewing data, while all but Facebook violated another that amalgamates and analyzes audio, video and text data [USPTO materials] to perform a similar function. It further alleged that AOL, Apple, Google and Yahoo violated two additional patents, 6,034,652 and 6,788,314 [USPTO materials], that identify advertisements, news and videos to display "in a way that occupies [a user's] peripheral attention."

Allen's suit comes as several of the named defendants face unrelated litigation alleging misappropriation of intellectual property. Connecticut company XPRT Ventures LLC sued [JURIST report] eBay in July claiming the infringement of six patents for online auctions and payment systems. In April, a federal appeals court found that eBay is not required to actively monitor its website [JURIST report] for the sale of counterfeit goods. The ruling came shortly after a French court ordered [JURIST report] the company to pay LVMH Moet Hennessy Louis Vuitton (LVMH) [official website] damages for paying search engines to direct consumers to counterfeit LVMH products. LVMH previously secured a $63 million judgment [JURIST report] in 2008 for failing to prevent the sale of counterfeit luxury goods that infringed on registered designs. Patent holding company NTP filed suit [JURIST report] in July against Apple and Google, among other smart phone makers, related to the use of e-mail systems utilizing technology patented by NTP. The US International Trade Commission (ITC) [official website] launched an investigation in June into allegations by HTC Corp [corporate website] accusing Apple of patent infringement on certain portable electronic devices. In October 2009, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that the company infringed 10 of its patents since the first iPhone was released in 2007. The patents cover wireless data transmission, speech coding and security/encryption.




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China releases anti-corruption report
Aman Kakar on December 29, 2010 11:50 AM ET

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[JURIST] China's chief administrative authority, the State Council, released a report [text] on Wednesday outlining steps to fight corruption and build a cleaner government. The report recognizes that corruption remains a concern and states the aims of the Chinese government are to build a perfect system of punishment and prevention of corruption with more resolutions and powerful measures aimed at winning the people's confidence. The ruling party of China, the Communist Party of China (CPC) [official website], has also issued codes of conduct prohibiting party members from using their powers to seek illegitimate gains. Supervisory and auditing authorities will play a critical role in China's plans to tackle corruption, with the report stating that:
By promoting the principle of transparency in power exercise and the system of supervisors for building a clean government, the personnel for law and discipline enforcement have been encouraged to foster the sense of conscientious acceptance of supervision from all quarters, so as to constantly improve their capabilities and levels in law and discipline enforcement, thus providing the organizational guarantee for China's endeavor to combat corruption and build a clean government.
The report highlights regulations which require party officials to disclose their incomes and investments and require officials to register gifts they have received. In addition, the report touts revision of the country's criminal laws to include embezzlement, bribery, dereliction of duty and holding property with an unidentified source. The report favorably recognizes the role of news media and the Internet in uncovering corruption in China and increasing transparency. Anti-corruption education is also identified as a critical tool in building a cleaner government.

The report is a continuation of the Chinese government's on-going battle against what is perceived to be pervasive corruption [JURIST news archive] in official channels. In July, the Chinese government executed a top judicial official [JURIST report] after a corruption probe in the southwestern city of Chongquing revealed he had taken nearly $2 million in bribes and had been protecting a number of organized crime gangs. In March, the Hebei Province People's High Court upheld a life sentence for the former vice president of China's Supreme People's Court (SPC), Huang Songyou, who had been convicted [JURIST reports] of bribery and embezzlement. Earlier that month, SPC president Wang Shengjun 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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Mentally disabled immigrants facing deportation accorded right to representation
Erin Bock on December 28, 2010 4:39 PM ET

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[JURIST] A federal judge has ruled that US Immigration Customs and Enforcement (ICE) [official website] officials must provide representation to two mentally disabled immigrants [JURIST news archive] who are challenging deportation proceedings. The ruling was a landmark decision in immigration proceedings as, unlike criminal courts, immigration courts are not required to provide defense attorneys to indigent defendants. Judge Dolly Gee of the US District Court for the Central District of California [official website] held last week that the men are entitled to representation, but stated that the representative does not have to be an attorney [Mercury News report]. The decision stemmed from a lawsuit [materials] filed by the American Civil Liberties Union of Southern California [advocacy website] arguing that the two men, Jose Franco-Gonzales and Guillermo Gomez-Sanchez, were deprived of their right to due process when they were declared unfit to face immigration proceedings and detained by immigration officials rather than released to their families until the situation was resolved. Although the action was originally filed on behalf of the two men, the court granted a petition to transform it into a class-action suit [LA Times report]. Franco-Gonzalez suffers from severe cognitive disabilities and Gomez-Sanchez was diagnosed with paranoid schizophrenia. Judge Gee released the two men on bail in April, but they are still facing possible deportation.

In October, the ICE and the US Department of Homeland Security (DHS) [official website] announced that US government has deported a record number of illegal immigrants [JURIST report] in 2010. The agencies reported that more than 390,000 illegal immigrants were deported and that half of those deported allegedly had criminal records. In July, a study released by Syracuse University [JURIST report] indicated that backlogs at US immigration courts had increased by more than 30 percent in the previous 18 months. This rise has been attributed to the Obama Administration increasing enforcement of immigration laws [JURIST report]. Federal authorities have indicated that the workload would continue to grow if Arizona's recent immigration law [SB 1070 text; JURIST news archive] is implemented. The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. The constitutionality of the law has been widely disputed, and the legislation is now facing several lawsuits, including a suit filed by the US Department of Justice [JURIST report]. In October, a judge for the US District Court in the District of Arizona [official website] denied [JURIST report] motions to dismiss a class action lawsuit challenging the law's constitutionality.




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SEC sues investors for insider trading in acquisition of biosciences corporation
Matt Glenn on December 28, 2010 3:53 PM ET

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[JURIST] The Securities and Exchange Commission (SEC) [official website] has filed an insider trading complaint [SEC release] against unknown investors in Martek Biosciences Corp. [corporate website], claiming that the investors purchased an unusually large number of call options in Martek in the two weeks preceding the December 21 announcement [DSM release] that DSM [corporate website] planned to purchase Martek. The SEC's complaint, filed last week in the US District Court for the Southern District of New York [official website], alleges that the investors bought 2,615 Martek call options [Baltimore Sun report] between December 10 and 15 and sold the options on December 21, the day on which the previously non-disclosed deal was announced. DSM paid a 35 percent premium over Martek's December 20 closing price in the deal, allowing the investors to make $1.2 million according to the SEC. To prevail on the insider trading [SEC backgrounder] claims, the SEC must show that the defendants purchased the call options on the basis of material nonpublic information. The court agreed to freeze assets from the sale [AP report] on December 23 and scheduled a hearing for January 6.

Recent years have seen an increase in insider trading cases. Last week it was announced that Karl Motey, a cooperating witness in a large insider trading probe, had pleaded guilty [Bloomberg report] earlier in the month to conspiracy and securities fraud. Earlier this month authorities arrested executives from Dell, Advanced Micro Devices (AMD), Flextronics and Taiwan Semiconductor Manufacturing [corporate websites] on insider trading charges [PC Mag report] in part of the same probe that snared Motey. The probe involves expert networks [Reuters report] that facilitate conversations between insiders and investors and whether or not these conversations led to the disclosure of confidential information. In September, a judge sentenced former IBM [corporate website] senior vice president Robert Moffat to six months in prison [JURIST report] and ordered him to pay a $50,000 fine for his role in the largest insider trading trading case in US history. Moffat's conviction was part of the government's investigation into Galleon Group hedge fund founder Raj Rajaratnam [JURIST news archive], who pleaded not guilty [JURIST report] to insider trading charges last December. Prosecutors claim that Rajaratnam and others at Galleon Group solicited nonpublic information from insiders at other companies. Former Qwest CEO Joseph Nacchio began serving a 6-year sentence [JURIST report] for insider trading in April 2009.




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Telecom company reaches settlements with DOJ and SEC in bribery case
Erin Bock on December 28, 2010 3:43 PM ET

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[JURIST] Global telecommunications organization Alcatel-Lucent [corporate website] on Monday agreed to pay more than $137 million [press release] to resolve investigations into its sales practices by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) [official websites]. The company will pay $92 million as part of a deferred prosecution agreement to resolve the criminal charges filed today by the DOJ in the US District Court for the Southern District of Florida [official website]. The charges consist of one count of "violating the internal control provisions" of the Foreign Corrupt Practices Act (FCPA) [materials] and one count of "violating the books and records provisions" of the FCPA. Additionally, the DOJ filed charges against three of the company's subsidiaries for "conspiring to violate the anti-bribery, books and records, and internal control provisions" of the FCPA. The subsidiaries have agreed to plead guilty to these charges. According to the DOJ statement, the company and its subsidiaries made improper payments to foreign government officials in order to obtain contracts for business in Costa Rica, Honduras, Malaysia and Taiwan and also violated FCPA regulations by hiring third-party sales and marketing agents. The company profited more than $48 million dollars from these transactions. As part of the settlement, Alcatel-Lucent agreed to enhance their compliance procedures, retain an independent compliance monitor for three years, and submit yearly reports to the DOJ. In a separate settlement with the SEC, the company consented to a permanent injunction against FCPA violations and agreed to pay more than $45 million to resolve the matter. Alcatel-Lucent released a statement [text] welcoming the settlements and announcing procedures to prevent such violations from occurring in the future.

Alcatel committed these violations prior to merging with Lucent Technologies in December 2006. Lucent has fought its own legal battles relating to patent infringement. In 2003, Lucent filed 15 patent claims alleging that PC makers violated patents governing digit music technology developed by its research and development organization, Bell Laboratories [corporate website]. Microsoft [corporate website] joined the litigation as an intervenor and counter-claimant, due to its wide circulation of Windows Media Player through its Windows operating system. Claims were also filed against Gateway and Dell [corporate websites]. In February 2007, a federal jury in California found that Microsoft violated two patents and awarded Alcatel-Lucent $1.52 billion in damages [JURIST report]. One week later, a federal judge dismissed [JURIST report] Alcatel-Lucent's second patent infringement suit filed against Microsoft concerning patents related to speech recognition technology. In August 2007, a federal judge overturned the $1.52 billion jury decision [JURIST report], ruling that the verdict "was against the clear weight of the evidence." The US Court of Appeals for the Federal Circuit [official website] affirmed [JURIST report] the decision in 2008.




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Khodorkovsky verdict draws international criticism
Matt Glenn on December 28, 2010 3:00 PM ET

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[JURIST] International human rights organizations and numerous governments criticized Russia's justice system following Monday's guilty verdict [JURIST report] against Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense profile] on embezzlement charges. Amnesty International (AI) [advocacy website] urged Russian courts to overturn the verdict [press release], claiming the trial was unfair and appeared politically motivated. AI claimed that prosecutors failed to provide due process for Khodorkovsky by refusing to allow Khodorkovsky to cross-examine witnesses, harassing and pressuring former colleagues to testify against Khodorkovsky and failing to disclose potentially exculpatory evidence to the defense team. US Secretary of State Hillary Clinton [official profile] also criticized the process [press release], saying that Monday's verdict "raises serious questions about selective prosecution -- and about the rule of law being overshadowed by political considerations. This and similar cases have a negative impact on Russia's reputation for fulfilling its international human rights obligations and improving its investment climate." German Foreign Minister Guido Westerwelle [official profile] also criticized the verdict, stating [press release]:
I am greatly concerned that Mikhail Khordorkovsky and Platon Lebedev have once again been found guilty. The circumstances of the trial were most unsatisfactory and a setback for the modernization to which the country aspires. It is in the interest of our Russian partners to take these concerns seriously and firmly uphold the rule of law, democracy and human rights.
A spokesperson for Russia's Ministry for Foreign Affairs [official website, in Russian] rebuffed criticism from foreign governments [press release, in Russian; RIA Novosti report], declaring "[a]ttempts to exert pressure on the court are unacceptable." Khodorkovsky and Lebedev are currently serving eight-year prison sentences after being convicted on fraud and tax evasion charges [JURIST report] in 2005 stemming from attempts to embezzle valuable assets from Yukos. Prosecutors are seeking a six-year prison term for Khodorkovsky, but a sentence will not be handed down [Moscow Times report] until Judge Viktor Danilkin finishes reading the 250-page verdict.

The trial has not proceeded without considerable political conflict. In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that former president and current prime minister Vladimir Putin [official website; JURIST news archive] ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. Some critics of the Russian government have argued that the charges against Khodorkovsky and Lebedev are politically motivated [JURIST op-ed] due to Khodorkovsky's opposition to Putin. In March, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty. The statement echoed concerns Khodorkovsky had previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].




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Afghanistan president orders tribunal to hear parliamentary election fraud complaints
Zach Zagger on December 28, 2010 12:47 PM ET

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[JURIST] Afghanistan President Hamid Karzai [BBC profile, JURIST news archive] issued a decree Sunday allowing the country's Supreme Court [official website] to go forward with its plan to set up a tribunal to hear complaints of fraud during the September parliamentary elections [IEC backgrounder]. The tribunal brings doubt over the legitimacy of the elections which have already been tainted by irregularities that forced authorities to invalidate a significant number of votes and disqualify candidates. The decision comes less than a month before the 249-seat parliament is set to convene on January 20 but officials say Karzai is committed to inaugurating the parliament by then. The Supreme Court had initially suggested the tribunal after receiving a flood of complaints passed on by the Attorney General Office [official website]. The Independent Election Commission (IEC) [official website], however, claims that no one has the authority to overturn the results of the election once it has certified them. The tribunal will consist [Reuters report] of a five-judge panel that will review all issues with the election including allegations of criminal fraud and intimidation at the polls.

The September parliamentary elections irregularities raise doubt over the ability of the Afghanistan government to lead. In November, the Afghanistan Electoral Complaints Commission (ECC) [official website] disqualified 21 candidates [JURST report] for electoral fraud after finding widespread voting irregularities 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. In October, the IEC invalidated 1.3 million votes [JURIST report], nearly a quarter of the 5.6 million votes cast nationwide, due to findings of fraud. The IEC found that the 2,543 polling stations where the votes had been cast did not follow IEC procedures. The 2009 presidential election [JURIST news archive] of Karzai was also marred by fraud allegations.




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Nine men charged in UK for terror plot against US Embassy
Zach Zagger on December 28, 2010 10:59 AM ET

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[JURIST] Nine men were charged and taken custody on Monday in the UK for conspiring to bomb the US Embassy and the London Stock Exchange [official websites]. The charges come after [AP report] British authorities had apprehended 12 men on December 21 as part of raids to capture suspected terrorists. Four of the men charged are from Stoke-on-Trent, three are from Cardiff, and two more are from London. Three were released uncharged. The men are being charged [BBC report] with conspiring to cause an explosion and for engaging in conduct in preparation for terrorist acts under 5(1) of the British Terrorism Act of 2006 [text]. The men are alleged to have carried out reconnaissance on potential targets, downloaded research and materials, and tested explosive devices. US State Department [official website] spokesman Mark Toner told reporters in Washington [press release] that US officials in the UK were aware of the charges and "are working quite closely with British authorities, and appreciate the high level of cooperation that we have with them and are obviously taking suitable security precautions." British Security officials stated that the plots were not planned for over the holidays and were not connected to any larger European terror plots. The men will appear before England's Central Criminal Court [official website] in London on January 14.

The UK has been proactive about prompt apprehension of terror suspects since the July 2005 London transit bombings [JURIST report; JURIST news archive] that killed 52 people and injured 700 others. In October, a UK court began inquests into the bombings [JURIST report] to determine whether more lives could have been saved with a quicker response. In July, the UK Woolwich Crown Court sentenced three British Muslims to a minimum of 20 years in prison after being convicted [JURIST reports] under the Terrorism Act of 2006 for involvement with a 2006 plot to blow up numerous transatlantic flights to life in prison.




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Gibbs acknowledges Guantanamo will remain open for foreseeable future
Aman Kakar on December 27, 2010 2:48 PM ET

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[JURIST] Detainees will continue to be held at the detention center at Guantanamo Bay [JURIST news archive] for the foreseeable future, White House Press Secretary Robert Gibbs [WP profile] acknowledged [transcript] Sunday on CNN's "State of the Union." The statement comes almost one year after the Obama administration missed its self-imposed January 2010 deadline [JURIST report] to close the facility. Gibbs also stated that in addition to the use of civilian courts and military commissions [JURIST news archive], some detainees would have to be indefinitely detained:
[T]here are prohibitions legislatively on the transfer of some of the prisoners that are there into some part of this country, some would be tried in federal courts as we've seen done in the past, some would be tried in military commissions, likely spending the rest of their lives in a maximum security prison that nobody, including terrorists, have ever escaped from and some regrettably will have to be indefinitely detained, I say regrettably not because it's a bad thing necessarily for them in terms of the fact that they're very dangerous people and we have to make sure that even if we can't prosecute them, we're not putting them back out on the battlefield.
Gibbs emphasized that the future of Guantanamo Bay hinges on Republican cooperation to close the prison, which would be in the interests of national security, according to Gibbs, due to the facility's use as a recruiting tool by al Qaeda [CFR backgrounder].

The administration has run into several hurdles in closing the prison, including strong opposition from members of Congress. Earlier this month, the US House of Representatives voted 212-206 in favor [JURIST report] of a defense spending bill [HR 3082 materials] including a provision preventing Guantanamo detainees from being transferred to the US for trial. The legislation would block Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and the other accused 9/11 conspirators from being tried in a US civilian court, as intended [JURIST report] by US Attorney General Eric Holder. In May, the US House Armed Services Committee [official website] approved legislation [JURIST report] prohibiting the modification or construction of a facility in the US to hold detainees currently held at Guantanamo. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Germany, Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].




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Russia court finds Khodorkovsky guilty of embezzlement
Maureen Cosgrove on December 27, 2010 10:21 AM ET

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[JURIST] The Khamovnichesky District Court [official website, in Russian] in Moscow found former Russian oil executive Mikhail Khodorkovsky [defense profile; JURIST news archive] and his business partner Platon Lebedev [defense profile] guilty of embezzlement Monday. Khodorkovsky, the former owner of Yukos oil, and Lebedev were charged and convicted of embezzling 218 million tons of oil from Yukos between 1998 and 2003 and laundering over $27 billion [AFP report] in proceeds. Defense counsel pointed out inconsistent facts found at trial and criticized the ruling in a statement [text]:
[T]he judge blocked [defense] lawyers from introducing exculpatory documentary evidence and refused to hear many witnesses and experts. An illusion of adversarial nature and legitimacy was created by allowing the defense to file motions and objections to serious procedural violations, however [they were] routinely quashed. ... [T]he court ... openly ignore[d] applicable procedural and substantive laws as well as basic notions of fairness. This is testament to the power of those corrupt officials who zealously seek to justify their seizure, control and ownership of Yukos assets and to isolate Khodorkovsky and Lebedev from Russia's business and public spheres - and to keep them in jail as long as possible to achieve these goals.
Khodorkovsky and Lebedev are currently serving eight-year prison sentences after being convicted on fraud and tax evasion charges [JURIST report] in 2005 stemming from attempts to embezzle valuable assets from Yukos. Prosecutors are seeking a six-year prison term for Khodorkovsky, but a sentence will not be handed down [Moscow Times report] until Judge Viktor Danilkin finishes reading the 250-page verdict.

The trial has not proceeded without considerable political conflict. In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that former president and current prime minister Vladimir Putin [official website; JURIST news archive] ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. Some critics of the Russian government have argued that the charges against Khodorkovsky and Lebedev are politically motivated [JURIST op-ed] due to Khodorkovsky's opposition to Putin. In March, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty. The statement echoed concerns Khodorkovsky had previously expressed about the fairness of Russian trials and the need for widespread reform of the Russian court system [JURIST reports].




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Pennsylvania appeals court allows evidence obtained with GPS technology
Eryn Correa on December 26, 2010 2:10 PM ET

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[JURIST] A Pennsylvania appeals court has overturned a Chester County Court of Common Pleas [official website] decision banning the use of evidence obtained with global positioning systems (GPS) technology. The three judge panel of the appeals court allowed the admission [Daily Local News report] of evidence that could bring four more alleged burglaries to light. In 2008, GPS tracking devices had been placed in SUVs thought to be used in the commission of several burglaries around Philadelphia. The GPS devices later showed the SUVs at or near the scene of further crimes. Chester County Judge Thomas Gavin originally upheld the movement to suppress the evidence obtained by GPS citing a lack of case history and unease with the invasion of privacy such technology allowed.

The use of GPS technology by police has been a controversial issue in the US recently. In November, the US Court of Appeals for the District of Columbia Circuit [official website] declined to rehear en banc [JURIST report] a bid by the US Department of Justice to overturn a decision that prevents the government from using GPS technology to track suspects without a warrant. However, 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.




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Iran postpones execution of Kurdish law student
Jay Carmella on December 26, 2010 1:00 PM ET

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[JURIST] The scheduled execution of Kurdish student Habibolah Latifi on Sunday was postponed [press release, in Persian] by the Iranian government in order to investigate irregularities in the case, his defense lawyer Nemat Amadhi told ISNA news agency [official website]. Latifi, a law student, was arrested in 2007 and sentenced to death by hanging for his role in an attack on a police station and an attempted assassination of a prosecutor on behalf of the Kurdish Independent Life Party (PJAK) [official website]. Latifi was charged with the national security-related charge of mohareb, translated as being "enemies of God." On Friday, Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called on Iran to halt the execution and release [press releases] Latifi. In its statement, HRW called Latifi’s conviction unfair and criticized the charges against him:
Latifi is one of at least 16 Kurds facing execution on various national security-related charges including moharebeh. Human Rights Watch has documented numerous cases where Iranian security forces have used physical and psychological coercion including torture to secure confessions in security-related cases, and courts have convicted defendants of moharebeh in trials where prosecutors failed to provide any convincing evidence establishing the defendant's guilt.
The Iranian government has not officially commented on the status of Latifi’s execution.

The World Coalition Against the Death Penalty in October marked the 8th World Day against the Death Penalty [advocacy websites], specifically urging the US, Iran and China to end the death penalty [JURIST report]. Despite the continued use of the death penalty in some countries, there is a growing movement toward international abolition. Earlier this year AI reported [JURIST report] the number of countries using the death penalty dropped [report, PDF] in 2009. According to the report, more than 700 people were executed last year in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. More than two-thirds of the world's countries have abolished the death penalty in law or in practice.




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UN agency reports thousands of Ivory Coast refugees fleeing to Liberia
Jay Carmella on December 26, 2010 12:12 PM ET

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[JURIST] The United Nations Refugee Agency (UNHCR) [official website] on Saturday expressed concern [press release] over the humanitarian needs of nearly 14,000 Ivory Coast refugees who have fled to Liberia over the past month due to political instability and post-election violence [JURIST news archive]. The UNHCR warned that food supplies and available housing are running short and that an increasing number of refugees are arriving malnourished and are being exposed to various infections and diseases. The UNHCR says that it has already provided supplies for nearly 30,000 refugees, but is asking for more assistance for the growing number of Ivory Coast refugees who continue to cross the border into Liberia every day. The post-election violence has already resulted in more than 170 deaths [JURIST report] in the Ivory Coast.

During the post-election violence in the Ivory Coast hundreds have been arrested and dozens have been subjected to torture, ill treatment and forced disappearances. Alassane Ouattara defeated incumbent Laurent Gbagbo [BBC profiles] in a November 28 runoff election, but Gbagbo has refused to concede victory, and his supporters have been engaging in a campaign of violence and intimidation [WP report]. Last week, the Economic Community of West African States (ECOWAS) [official website] urged [JURIST report] Gbagbo to step down, threatening the use of force if he attempts to maintain power. Also last week, the UN Human Rights Council [official website] adopted a resolution [JURIST report] condemning recent post-election violence while Ouattara's prime minister Guillaume Soro [BBC profile] called on the International Criminal Court (ICC) [official website] to launch an investigation [DPA report] into possible crimes being committed by Gbagbo's supporters.




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ECOWAS threatens use of force in removal of Ivory Coast president
Eryn Correa on December 25, 2010 6:01 PM ET

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[JURIST] The Economic Community of West African States (ECOWAS) [official website] on Friday urged incumbent Ivory Coast president Laurent Gbagbo [BBC profile] to step down, threatening the use of force if he attempts to maintain power. Gbagbo has refused to cede power to president-elect Alassance Ouattara [BBC profile], who won the November 28 runoff electio,n according to international observers. Gbagbo's supporters have allegedly been engaging in violence and intimidation against opponents, which has resulted in more that 170 deaths [JURIST report], hundreds of arrests and the use of torture, ill treatment and forced disappearances, according to UN human rights officials. Gbagbo has faced multiple threats and sanctions levied by both the regional and international communities, including travel bans and freezes on financial assets, in addition to personal pleas from neighboring heads of state. Despite this, Gbagbo has refused to step down, describing actions against his government as illegal [BBC report] and rejecting the possibility of a power sharing agreement modeled on those created after the disputed elections in Kenya and Zimbabwe [JURIST news archives]. ECOWAS is also expected to send a delegation [Montreal Gazette report] of the presidents of Benin, Sierra Leone and Cape Verde to meet with Gbagbo hoping to convince him to make a peaceful exit so as not to have to depend on forced removal.

On Thursday, the UN Human Rights Council [official website] adopted a resolution condemning the post-election violence. Also Thursday, Ouattara's prime minister Guillaume Soro [BBC profile] called on the International Criminal Court (ICC) [official website] to launch an investigation into possible crimes being committed by Gbagbo's supporters. Earlier this month, the Council of the EU [official website] adopted a decision instituting sanctions [JURIST report] against the Ivory Coast. There has been unrest in the country [JURIST report] since elections were held at the beginning of this month. The UN certified Ouattrara's victory, despite a ruling by the Ivorian Constitutional Council in Gbagbo's favor. Both have taken oaths of office. Approximately $340 million in aid from the EU could also be withheld if Gbagbo does not concede victory to Ouattrara.




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India court sentences rights activist to life in prison
Drew Singer on December 25, 2010 10:36 AM ET

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[JURIST] A judge for the Raipur Sessions Court [GlobaLex backgrounder] of Chhattisgarh state India found human rights activist Binayak Sen [Hindustan Times profile] guilty of aiding rebels and sentenced him to life imprisonment Friday, amid criticism from international rights groups. Sen was convicted under the Chhattisgarh Special Public Security Act of 2005 [text, PDF] and the Unlawful Activities Prevention Act of 2004 [text] for involvement with the Naxalite Maoist rebellion [CFR backgrounder]. Sen, along with two others, was also acquitted of charges of waging war against the state [WP report] by Judge B.P. Verma, both of which are punishable by the death penalty [JURIST news archive]. The two other defendants were Piyush Guha and Narayan Sanyal, whom prosecutors said aided Sen. Amnesty International (AI) [advocacy website] called the charges "politically motivated" [press release] and called for them to be immediately dropped, saying
Life in prison is an unusually harsh sentence for anyone, much less for an internationally recognized human rights defender who has never been charged with any act of violence. ... Dr Sen, who is considered a prisoner of conscience by Amnesty International, was convicted under laws that are impermissibly vague and fall well short of international standards for criminal prosecution. ... [A]uthorities in Chhattisgarh should be acting to protect the people of the region from the abuses committed by the Maoists, as well as state security forces and militias.
AI also criticized the conduct of the trial, which lasted over three years due to repeated delays. Sen, who had been free on bail since May 2009, was taken into custody [TOI report] following the ruling.

The Indian government has faced both international and domestic criticism for its anti-terror laws. In 2008, AI urged Indian President Smt. Pratibha Devisingh Patil [official website] to reject [JURIST report] the Unlawful Activities Prevention Amendment of 2008 (UAPA) [legislative materials], which allows the government to hold terrorism suspects for up to 180 days. The bill, which came in response to the Mumbai terror attacks [BBC backgrounder; JURIST news archive]. Proponents of the UAPA have said that there are safeguards in place to make sure that the new law is not misused. In 2006, the opposition Bharatiya Janata Party (BJP) [party website], alleged that the Mumbai train bombings [BBC report] were "a fallout of repealing" [JURIST report] the country's Prevention of Terrorism Act (POTA) [text], set aside by the incumbent United Progressive Alliance (UPA) in 2004.




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Russia lower house quickly approves New START treaty
Drew Singer on December 24, 2010 3:29 PM ET

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[JURIST] The Russian State Duma [official website, in Russian] voted 350-59 on Friday to approve the New START nuclear arms treaty [materials, PDF; JURIST news archive] with the US, after just hours of debate. The New START treaty replaces the expired Strategic Arms Reduction Treaty [materials], with Russia and the US each pledging to reduce their countries' nuclear warheads by about 30 percent. Under the terms of the treaty and its protocol, both countries would only be allowed to deploy 1,550 strategic warheads, a decrease from the 2,200 currently permitted. Russian experts call the treaty the most significant development in modern US-Russian relations [LA Times report]. The government will likely approve treaty in full this January.

On Wednesday, the US Senate [official website] voted 71-26 [JURIST report] to ratify the treaty. US President Barack Obama and Russian President Dmitry Medvedev signed the treaty [JURIST report] in Prague in April. The agreement, reached [JURIST report] in February, is the first nuclear agreement between the two nations in nearly 20 years. The US State Department began negotiating [JURIST report] the treaty with Russia in 2009. Nuclear disarmament between the US and Russia, whose nuclear arsenals comprise 95 percent of the world's nuclear weapons, languished during the Bush administration. The treaty is considered a key part of easing tensions between the two countries, which reached a high point after the 2008 Georgia conflict [BBC backgrounder].




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Switzerland judge seeks prosecution of CIA-affiliated engineers for giving nuclear secrets to Pakistan
Drew Singer on December 24, 2010 2:51 PM ET

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[JURIST] A Swiss judge on Thursday called for the prosecution of three engineers who have links to the Central Intelligence Agency (CIA) [official website] for allegedly smuggling nuclear weapons technology to Pakistan. After six years of investigation, Swiss federal magistrate Andreas Mueller recommended [The Independent report] that the three engineers be tried for providing weapons-related technology to a Pakistani smuggling ring run by Abdul Qadeer Khan [BBC profile]. Brothers Urs and Marco Tinner, along with their father Friedrich, were arrested in 2004 on suspicion of smuggling, but were eventually released. The Tinners said that had been informants for the CIA [official website] since 2003. Khan has confessed to giving nuclear technology to Iran and Libya.

In September, an American scientist and his wife were indicted [JURIST report] for conspiring to sell nuclear weapons information to an individual they believed worked for the Venezuelan government. Pedro Leonardo Mascheroni and his wife, Marjorie Mascheroni, were arrested by the Federal Bureau of Investigation [official website] and appeared before the US District Court for the District of New Mexico. The defendants used to work at the Los Alamos National Laboratory and possessed classified nuclear weapons knowledge. According to the indictment, between March 2008 and August 2009, Pedro Mascheroni, who is a naturalized US citizen, negotiated a deal with an undercover FBI agent he believed to be a Venezuelan official in which he would help the country develop a nuclear weapon in exchange for over $700,000.




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Freedom House urges US and EU to renew sanctions against Belarus
Sarah Posner on December 24, 2010 12:21 PM ET

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[JURIST] The American rights group Freedom House [advocacy website] on Thursday urged [press release] the US and European Union (EU) [official website] to renew full sanctions against Belarus in the wake of post-election unrest. Freedom House commended U.S. Secretary of State Hillary Clinton and European High Representative Catherine Ashton [official websites] for their joint statement [text] calling on Belarusian authorities to release imprisoned presidential candidates and election protesters, and condemning all violence in the aftermath of last week's elections. Freedom House Executive Director David J. Kramer urged further action, stating that
[w]hile today's strong statement from foreign policy leaders in the United States and Europe is encouraging, both should be prepared to take further concrete action should conditions in Minsk not change dramatically and immediately. ... If the government of Belarus fails to take fully restorative action in the next two weeks, the European Union should renew full sanctions against the Lukashenka regime, which had been suspended in 2008. The current situation is much worse than that in 2006, when the E.U. and U.S. together imposed sanctions against the regime.
Freedom House is pressing for trans-Atlantic solidarity in taking action for this week's post-election controversy in Belarus.

Last week, Belarus conducted a presidential election that critics allege did not meet international standards. On Monday, Belarusian police arrested hundreds of demonstrators [JURIST report], including seven of the nine presidential candidates, who were protesting the results of Sunday's presidential election. The official results declared incumbent Alexander Lukashenko [BBC profile; JURIST news archive] the winner of the presidency for a fourth term. Hundreds of activists were arrested after protesting Lukashenko's 2006 presidential win, including opposition candidate Alexander Milinkevich [JURIST reports]. While Lukashenko has since sought to improve his country's ties with western nations, the US State Department [official website] has historically criticized Belarus' human rights record [2009 report; JURIST report]. The UN General Assembly Third Committee and the International Helsinki Federation for Human Rights [JURIST reports] have similarly denounced Belarus for human rights abuses.




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Alaska Supreme Court dismisses challenge to midterm election results
Sarah Posner on December 24, 2010 11:18 AM ET

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[JURIST] The Alaska Supreme Court [official website] on Wednesday dismissed [opinion, PDF] an election challenged filed by Republican Senate candidate Joe Miller [campaign website], allowing certification of the November results to move forward. Miller claimed that errors in the counting of election ballots and voter registration led to the write-in victory of his rival Senator Lisa Murkowski [campaign website]. Affirming a lower court decision, the Supreme Court held that abbreviations, misspellings or other variations in the write-in candidate's name is allowed as long as the voter's intention can be ascertained:
Joe Miller seeks an interpretation of election statute AS 15.15.360 that would disqualify any write-in votes that misspell the candidate's name. We do not interpret the statute to require perfection in the manner that the candidate's name is written on the ballot. Our prior decisions clearly hold that a voter's intention is paramount.
The Supreme Court gave Miller until Monday to decide on whether he will back Murkowski or pursue the claim in federal court. Members of Congress will be sworn in when the new term begins January 5.

The lawsuit follows the close 2010 midterm election results between Senate incumbent Lisa Murkowski and Republican candidate Joe Miller. According to the State of Alaska Division of Elections [official website], Murkowski leads [unofficial results] with over 100,000 write-in votes in comparison to 90,740 votes for Miller. Earlier this month, Superior Court Judge William B. Carey upheld the division of election's actions, striking down Miller's challenge to the election results. In November, a federal judge halted certification [AP report] of the election results pending the Supreme Court's decision.




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Kenya lawmakers approve motion to withdraw from ICC
Sarah Posner on December 23, 2010 3:07 PM ET

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[JURIST] The Kenyan Parliament [official website] on Wednesday approved a motion to withdraw the country from the International Criminal Court (ICC) [official website]. The vote comes a week after ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] presented cases against [JURIST report] six individuals for crimes committed during Kenya's 2007 post-election violence [JURIST news archive]. Although the vote is non-binding, it is a victory for the sponsor of the legislation [Reuters report], Isaac Ruto, who wants the six suspects to be tried in Kenya. The individuals being prosecuted include senior politicians and civil servants. Kenyan Prime Minister Raila Odinga [BBC profile] announced Thursday his opposition to leaving the ICC, stating that the trials will take take place at The Hague.

Earlier this month, the ICC prosecutor announced that Kenya's threats would not prevent the prosecution [JURIST report] of the six suspects responsible for Kenya's 2007 post-election violence. According to the statement, the ICC prosecutor would obtain arrest warrants for individuals behind these threats. The controversy surrounding the ICC's trial of Kenyan suspects followed from the prosecutor's September announcement [JURIST report] of charges against the six Kenyan suspects. This announcement came after the ICC pre-trial chamber granted [press release] the prosecutor authority to investigate into crimes against humanity committed during the 60 days of violence after the Kenya's presidential election. Violence following the election left more than 1,100 people dead, 3,500 injured and up to 600,000 forcibly displaced. In addition, there were hundreds of rapes and more than 100,000 different properties were destroyed in Kenya.




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UN rights council condemns Ivory Coast post-election violence
Jaclyn Belczyk on December 23, 2010 2:03 PM ET

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[JURIST] The UN Human Rights Council [official website] on Thursday adopted a resolution condemning recent post-election violence in the Ivory Coast [JURIST news archive] that has resulted in more than 170 deaths. Alassane Ouattara defeated incumbent Laurent Gbagbo [BBC profiles] in a November 28 runoff election, but Gbagbo has refused to concede victory, and his supporters have been engaging in a campaign of violence and intimidation [WP report]. UN human rights officials said Thursday that more than 170 have been killed [UN News Centre report], hundreds have been arrested and dozens have been subjected to torture, ill treatment and forced disappearances. Also Thursday, Ouattara's prime minister Guillaume Soro [BBC profile] called on the International Criminal Court (ICC) [official website] to launch an investigation [DPA report] into possible crimes being committed by Gbagbo's supporters. Chief prosecutor Luis Moreno-Ocampo said Tuesday that he had not yet opened an investigation [statement] but that he would do so if crimes were committed in his jurisdiction.

Last week, the Council of the EU adopted a decision to institute sanctions [JURIST report] against the Ivory Coast until Gbagbo concedes victory. Earlier this month, ICC deputy prosecutor Fatou Bensouda urged those in the Ivory Coast to refrain from further violence [JURIST report]. In February, Gbagbo dissolved [JURIST report] the country's parliament and electoral commission based on allegations of voter fraud in the long delayed presidential elections, the first in a decade. On disbanding the government, Gbagbo charged Soro with creation of new government and new election format. Gbagbo had accused Beugre Mambe, the head of the independent electoral commission, of fraud by attempting to register more than 400,000 whom Gbagbo considers to be foreigners. Opposition parties such as the Ivory Coast Democratic Party (PDCI) and Republican Gathering Party (RDR) [party websites, in French] said that most of those voters are ethnic groups in the north of the country, who would likely have voted against Gbagbo. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office through delaying six successive elections.




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Argentina ex-dictator sentenced to life in prison
Maureen Cosgrove on December 23, 2010 10:50 AM ET

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[JURIST] Former Argentine dictator Jorge Rafael Videla [Trial Watch profile; JURIST news archive] was sentenced on Wednesday to life in prison for crimes against humanity during Argentina's "Dirty War" [JURIST news archive]. The Federal Court of Cordoba [official website, in Spanish] found Videla guilty [La Nacion report, in Spanish] of human rights violations when he served as military chief of Argentina from 1976 to 1981. Many of the two dozen former military and police officials, including retired general Luciano Benjamin Menendez [Project Disappeared profile, in Spanish; JURIST news archive], were tried and sentenced to life prison terms along with Videla. Videla accepted responsibility for his actions during the dictatorship, but denied that he had committed human rights violations. In 1985, Videla was convicted and sentenced of similar crimes, but served only five years of the life sentence before being granted amnesty by former president Carlos Menem [BBC profile]. Videla will serve his sentence in a civilian prison.

Videla's trial commenced in July after he was charged with an additional 49 counts [JURIST reports] of murder, kidnapping and torture in May following the identification of 40 bodies in Buenos Aires last year. In 2006, a federal judge ruled that the presidential pardon was unconstitutional [JURIST report], allowing criminal charges to be brought against the former dictator. Videla, who is now 85, is also facing charges in Italy, Spain, France and Germany [JURIST reports] involving the deaths of their citizens during the Dirty War. Videla has been in prison since 2008 while an investigation is underway for his role in the abduction of children born to political prisoners and forced disappearance victims during the Dirty War. A court revoked the house arrest conditions he had been granted in 1998 when the investigation began. During the period Videla was head of the military junta, an estimated 90,000 civilians were killed or disappeared.




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France judge charges Rwanda rebel leader with war crimes: reports
Jaclyn Belczyk on December 23, 2010 10:08 AM ET

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[JURIST] A French judge has charged Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder] leader Callixte Mbarushimana, according to reports Wednesday. Examining magistrate Rene Cros charged Mbarushimana with war crimes and crimes against humanity [AFP report] for his role in the 1994 Rwandan genocide [JURIST news archive]. The charges come in response to a lawsuit filed by victims' groups such as Ibuka [advocacy website, in French] accusing Mbarushimana of personal responsibility for killings at Kigali roadblocks. Mbarushimana was arrested [JURIST report] by French authorities in October on a separate warrant from the International Criminal Court (ICC) [official website].

In 2008, Mbarushimana was arrested by German border police [JURIST report] as he attempted to travel to Russia on charges that he killed 32 people during the Rwandan genocide. In 2005, the UN asked France to bring genocide charges [JURIST report] against Mbarushimana, who was then in the country under refugee status. Carla Del Ponte, the former chief prosecutor for the International Criminal Tribunal for Rwanda [official website], refused to charge him and said the ICTR did not file an indictment against Mbarushimana because it lacked sufficient evidence against him.




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Canada high court strikes down sections of federal fertility law
Ashley Hileman on December 23, 2010 9:12 AM ET

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[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] 4-4-1 Wednesday that various sections of the national law regulating the use of human embryos and other aspects of reproduction fall outside the scope of Parliament's legislative authority. In its advisory opinion [Ottawa Sun report], the divided court held that the power to regulate the clinics and doctors conducting fertility treatments and embryonic research, previously delegated to the federal government by the Assisted Human Reproduction Act [text, PDF], rightly belongs to the provinces, which have jurisdiction over hospitals and other important local matters. The case was originally brought by the Attorney General of Quebec [official profile], who challenged the constitutionality of certain sections on the basis that they were not valid criminal law, limited only to prohibiting wrongful acts, but that they instead sought to regulate medical practice and research. In 2008, the Court of Appeal of Quebec [official website] ruled [JURIST report] that the challenged sections did constitute an attempt by Parliament to regulate hospitals and medical research and declared them unconstitutional. The Attorney General of Canada [official profile] appealed to the Supreme Court. While the court did concede that those sections fall outside of the scope of the federal government, much of the Act remains intact. In her reasoning, the Chief Justice stated:
The text of the Act suggests that its dominant purpose is to prohibit inappropriate practices, rather than to promote beneficial ones. It is true that the Act establishes a scheme to control assisted reproduction on a national level, and this initiative necessarily touches on provincial jurisdiction over medical research and practice. However, the dominant thrust of the Act is prohibitory, and the aspects that concern the provision of health services do not rise to the level of pith and substance. As s. 2 of the Act explains, the purpose of the Act is to safeguard against practices that may offend fundamental values and rights and harm human health, safety and dignity. The emphasis is on preventing practices that offend these values and produce this harm. The Act accomplishes its purpose of prohibiting reprehensible conduct by imposing sanctions. The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration.
While Quebec has already passed legislation regulating the issues of fertility and reproduction, other provinces that have not yet done so would be required to enact their own.

Canada's ban on human cloning [JURIST news archive] was first introduced [JURIST report] in 2003, and the Assisted Human Reproduction Act has been praised [press release] by the Center for Genetics and Society [advocacy website], a group seeking comprehensive regulation of embryonic use. In 2007, the UN University Institute for Advanced Studies [official website] called for a universal ban on human cloning, but numerous countries and US states [JURIST reports] have increasingly liberalized non-cloning use of human embryos [JURIST news archive].




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Senate ratifies Russia nuclear arms treaty
Jaclyn Belczyk on December 22, 2010 3:30 PM ET

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[JURIST] The US Senate [official website] voted 71-26 Wednesday to ratify the so-called New START treaty [materials; JURIST news archive] between Russia and the US. The new START treaty replaces the expired Strategic Arms Reduction Treaty (START I treaty) [materials], with Russia and the US each pledging to reduce their countries' nuclear warheads by about 30 percent. Under the terms of the treaty and its protocol, both countries would only be allowed to deploy 1,550 strategic warheads, a decrease from the 2,200 currently permitted. Senator John Kerry (D-MA), head of the Senate Foreign Relations Committee [official websites], praised the ratification, saying:
This historic Senate vote makes our country safer and moves the world further away from the danger of nuclear disaster. The winners are not defined by party or ideology. The winners are the American people, who are safer with fewer Russian missiles aimed at them, and who benefit knowing that our cooperation with Russia in curbing Iran’s nuclear ambitions and supplying our troops in Afghanistan can be strengthened.
The treaty needed at least 67 votes to be ratified.

US President Barack Obama and Russian President Dmitry Medvedev [official websites] signed the treaty [JURIST report] in Prague in April. The agreement, reached [JURIST report] in February, is the first nuclear agreement between the two nations in nearly 20 years. The US State Department began negotiating [JURIST report] the treaty with Russia in 2009. Nuclear disarmament between the US and Russia, whose nuclear arsenals comprise 95 percent of the world's nuclear weapons, languished during the Bush administration. The treaty is considered a key part of easing tensions between the two countries, which reached a high point after the 2008 Georgia conflict [BBC backgrounder].




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Congress approves defense spending bill preventing US trial of Guantanamo detainees
Jaclyn Belczyk on December 22, 2010 3:02 PM ET

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[JURIST] The US Senate and the House of Representatives [official websites] on Wednesday gave final approval to a defense spending bill [HR 3082 materials] that includes a provision preventing Guantanamo Bay [JURIST news archive] detainees from being transferred to the US for trial. The legislation would block Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and the other accused 9/11 conspirators from being tried in a US civilian court. The bill was approved by the House [JURIST report] last week, prompting US Attorney General Eric Holder [official website] to send a letter [text, PDF] to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell urging them not to include the provision in the spending bill. If signed into law, the ban will remain in place until September 30, the end of the current fiscal year. Also this week, reports have indicated that the Obama administration is considering implementing a periodic review process for detainees being held indefinitely at Guantanamo.

In the first civilian trial of an ex-Guantanamo detainee, a federal jury convicted [JURIST report] Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] last month 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. While the Obama administration viewed the conviction and 20-year minimum sentence as a victory, opponents have cited the acquittals as evidence that civilian courts are inadequate venues for trying terror suspects. Several scholars have nevertheless maintained that federal courts are capable of serving justice [JURIST op-ed; JURIST op-ed]. Upon taking office, President Barack Obama pledged to close the detention facility at Guantanamo Bay [JURIST report] by January 2010, but he has been met with strong congressional opposition to transferring detainees to US soil




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Obama signs 'Don't Ask Don't Tell' repeal
Jaclyn Belczyk on December 22, 2010 12:52 PM ET

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[JURIST] US President Barack Obama [official website] on Wednesday signed into law [press release] a bill to repeal the military's controversial "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive]. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate Saturday after being passed [JURIST reports] by the House of Representatives last week. At the signing ceremony, Obama said [remarks]:
this law I'm about to sign will strengthen our national security and uphold the ideals that our fighting men and women risk their lives to defend. No longer will our country be denied the service of thousands of patriotic Americans who were forced to leave the military—regardless of their skills, no matter their bravery or their zeal, no matter their years of exemplary performance—because they happen to be gay. No longer will tens of thousands of Americans in uniform be asked to live a lie, or look over their shoulder, in order to serve the country that they love.
DADT will remain in effect until the president, secretary of defense and chairman of the Joint Chiefs of Staff certify that the necessary policies and procedures are in place within the military to implement the repeal. After receiving certification, the full repeal must take effect within 60 days.

The Obama administration had been pushing Congress to repeal DADT as courts have also been weighing in on the issue. Last week, three former service members discharged under DADT filed a complaint against the Department of Defense seeking reinstatement [JURIST report] and the declaration that their discharges under the statute, and the statute itself, are unconstitutional. Last month, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. The policy was struck down by a federal court in September, but an appeals court has since stayed that ruling [JURIST reports]. 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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Federal judge awards damages to Islamic charity in NSA wiretapping case
Jaclyn Belczyk on December 22, 2010 11:22 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Tuesday ordered [text, PDF] the US government to pay more than $2.5 million in damages and attorney's fees to an Islamic charity for illegally wiretapping its conversations without a warrant. Judge Vaughn Walker found in March that the National Security Agency (NSA) [official website] warrantless wiretapping program violated the rights of the Al-Haramain Islamic Foundation [JURIST news archive] under the Foreign Intelligence Surveillance Act (FISA) [text], granting the foundation's motion for summary judgment despite refusing to admit a confidential NSA document into evidence. While Walker ordered the government to pay attorney's fees and damages Tuesday, he declined to order punitive damages [NYT report], concluding that the government had not shown "reckless or callous indifference" to the plaintiffs' rights. Walker also declined to make a "declaration that defendants' warrantless electronic surveillance was unlawful as a violation of FISA," or to "order that any information obtained by means of the defendants' unlawful surveillance shall not be used by the United States government in any proceeding and shall be expunged from defendants' files and records."

Al-Haramain filed a motion [JURIST report] for partial summary judgment in July 2009. In February 2009, the US Court of Appeals for the Ninth Circuit [official website] affirmed the district court's ruling [JURIST reports] denying a government appeal to keep the NSA call log secret, despite its accidental release to Al-Haramain in 2004. The call log had been deemed a state secret [JURIST report], but the decision required the government to allow the foundation to view the document. JURIST contributor Victor Comras said that Walker had done a "truly remarkable job" balancing national security and due process [JURIST comment] in the case. Walker had previously dismissed the suit [JURIST report], finding that Al-Haramain lacked a cause of action because the state secrets privilege trumped procedural requirements under FISA




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UK court denies public inquiry into Iraq detainee abuse
Aman Kakar on December 22, 2010 10:28 AM ET

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[JURIST] A UK High Court on Tuesday denied an appeal [judgment text] from Iraqi citizens to open a single public inquiry into allegations of abuse by members of the British Armed Forces. The Public Interest Lawyers (PIL) [law firm website], the group representing a group of more than140 Iraqis, appealed to the High Court after Defence Secretary Liam Fox [official website] refused to open a single public inquiry into allegations of UK military abuse. The Ministry of Defence (MOD) [official website] argued that a public inquiry would be unnecessary since public inquiries into the Baha Mousa [JURIST report] and the Al Sweady cases were already under way by the Iraq Historic Allegations Team (IHAT). In the appeal, PIL contended that IHAT was not sufficiently independent as required by article 3 of the European Convention of Human Rights (ECHR) [text]. Lord Justice Richards and Mr Justice Silber ruled that IHAT met the requirements of article 3, stating:
we do not accept any of the grounds on which the claimant contends that IHAT lacks the requisite independence for the purposes of an article 3 compliant investigation. Any problem arising out of personal involvement by members of the RMP in the events under investigation can be dealt with appropriately and will have to be so dealt with in order to avoid jeopardising the compliance of the process with article 3.
Richards and Sibler did not rule out that the IHAT investigations may give rise to systemic issues that may require public inquiries in the future. PIL issued a statement on Tuesday expressing their disappointment [press release] and announcing their plan to take the case to the Court of Appeals.

The hearings into Fox's refusal to open public inquiries began in November [JURIST report]. The PIL submitted videos to support claims that UK soldiers and interrogators abused Iraqi detainees in British internment facilities. 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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Federal judge upholds Illinois ex-governor Ryan's fraud convictions
Jaclyn Belczyk on December 22, 2010 9:37 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Illinois [official website] on Tuesday upheld the convictions [opinion, PDF] of former Illinois governor George Ryan [JURIST news archive], refusing his request for early release. In September, Ryan asked Judge Rebecca Pallmeyer to vacate his prison sentence [JURIST report], following a recent US Supreme Court [official website; JURIST news archive] decision. In June, the Supreme Court ruled [JURIST report] in Skilling v. United States [Cornell LII backgrounder] that the "honest services" doctrine [18 USC § 1346 text] is not unconstitutionally vague under a limited construction of the statute. Ryan argued that under this new "honest services" precedent, he should be released from prison and his convictions for mail fraud and for violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] should be thrown out. Pallmeyer rejected his argument, finding that his case was distinguishable. Ryan is currently serving a six-and-a-half-year sentence [JURIST report] in federal prison on corruption charges and is scheduled for release in July 2013 [FBP materials]. His attorneys plan to appeal [AP report].

In 2008, Ryan issued his first public apology [JURIST report] for the crimes that resulted in his imprisonment. He was jailed [JURIST report] on corruption charges in 2007. Ryan's trial began in 2005, and, in 2006, a jury found him guilty [JURIST reports] on multiple counts of corruption and fraud [indictment, PDF] in connection with a bribes-for-licenses scandal that occurred during Ryan's term as Illinois Secretary of State. Ryan made national headlines and won praise in some quarters in January 2003 when, just before leaving office, he commuted the executions [BBC report] of all Illinois inmates then on death row.




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FCC approves 'net neutrality' rules
Jaclyn Belczyk on December 21, 2010 2:39 PM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] voted 3-2 Tuesday in favor of new rules to allow the government to regulate Internet traffic. The so-called net neutrality [JURIST news archive] rules, proposed [JURIST report] by FCC Chairman Julius Genachowski [official profile] earlier this month, would prevent Internet providers from selectively blocking web access. The regulations would require transparency of Internet broadband networks to help consumers make better decisions about services, preserve open access to all lawful Internet content and protect freedom of speech in the "marketplace of ideas" online. Genachowski said [press release, PDF]:
The open Internet is a crucial American marketplace, and I believe that it is appropriate for the FCC to safeguard it by adopting an Order that will establish clear rules to protect consumers' access. The Commission has worked tirelessly to offer a set of guidelines that, while not as strong as they could be, will nonetheless protect consumers as they explore, learn, and innovate online.
Supporters of net neutrality have argued the rules do not go far enough, while opponents have called them unnecessary. The regulations may be blocked by Congress, and legal challenges are expected [WSJ report].

The FCC has long been trying to exert more control over Internet regulation. In July, US Senator Jim DeMint (R-SC) [official website] introduced legislation [text, PDF; JURIST report] intended to block the FCC from implementing its National Broadband Plan [official website; materials]. The Freedom for Consumer Choice Act would remove the FCC's ability to declare the actions of a communications provider illegal unless there was a clear showing that the practice causes harm to consumers and will not be corrected by market forces. A month earlier, the FCC opened a new proceeding [JURIST report] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. A previous court ruling [JURIST report] found that the FCC lacks the power to enforce net neutrality. Net neutrality is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information. 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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Sudan court dismisses challenge to independence vote, refuses to dismiss 2 others
Matt Glenn on December 21, 2010 1:43 PM ET

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[JURIST] Sudan's Constitutional Court on Monday rejected a suit that could have postponed next month's scheduled referendum on independence for southern Sudan but chose not to dismiss two similar suits. According to a spokesperson for the South Sudan Referendum Commission (SSRC), the court ordered the group to respond to one of the suits [Sudan Tribune report] by December 26. Some claim the lawsuits are frivolous [Reuters report] and that groups are filing them to delay the vote in which the south is expected to choose to break off from the north. One suit filed earlier this month [JURIST report] accused the SSRC of failing to adhere to proper procedures in voter registration and of improperly appointing pro-secession advocates to important posts in the SSRC. The referendum is scheduled to begin January 9, but it may be delayed if the pending lawsuits are not resolved by then.

The referendum is meant to be the culmination of the 2005 Comprehensive Peace Agreement (CPA) [UN press release] that ended two decades of civil war. In September, the UN Security Council issued a statement [text] calling on the CPA parties to take "urgent action to facilitate peaceful and on-time referenda that reflect the will of the Sudanese people, to respect their results, and to resolve key remaining post-referenda issues." In April, Sudan attempted to have its first democratic multi-party election in almost a quarter of a century, but it was fraught with controversy. Two political parties in eastern Sudan accused the ruling NCP [JURIST report] of using voter fraud and intimidation in gaining electoral victories in their region of the country during the national elections.




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Iran first VP charged with corruption
Matt Glenn on December 21, 2010 1:09 PM ET

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[JURIST] Iranian prosecutors have charged First Vice President Mohammad Reza Rahimi with embezzling money, judiciary spokesperson Gholam Hossein Mohseni Ejehi announced Monday. The spokesperson said he expects the case to go to trial [AP report]. Conservative lawmakers say they have strong evidence linking Rahimi [Haaretz report] with corruption. Rahimi has previously denied lawmakers' corruption accusations and threatened to sue his accusers.

In June, an Iranian lawmaker claimed there was $14 billion worth of corruption [Persian2English report] in the government of Iranian President Mahmoud Ahmadinejad [BBC profile; JURIST news archive]. In 2009, Iran's supreme leader Ayatollah Ali Khamenei [BBC profile] criticized Ahmadinejad [Guardian report] after the president attempted to distance his regime from previous regimes that he hinted were corrupt. In 2008, an Ahmadinejad associate in Parliament accused members of Iran's judiciary [Times report] of being corrupt.




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Toyota agrees to pay additional $32 million in fines to US government over safety defects
Julia Zebley on December 21, 2010 12:47 PM ET

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[JURIST] Toyota Motor Corporation [corporate website; JURIST news archive] settled US federal investigations on Tuesday by agreeing to pay a record $32.4 million in extra fines for product defects and poor handling of a recall. The fines stem from two investigations conducted by the National Highway Traffic Safety Administration (NHTSA) [official website]. The first, a fine of $16.375 million, concerned nearly five million vehicles with accelerator pedals entrapped by floor mats, which caused at least one fatal accident in California. The second, a fine of $16.050 million, resulted from Toyota's failure to notify the NHTSA of a safety defect in several Toyota models' steering relay rods. In that situation, Toyota had already recalled the faulty products in Japan in 2004, but delayed recall in the US until 2005. In a press release [text], NHTSA Administrator David Strickland said, "NHTSA acknowledges Toyota's efforts to make improvements to its safety culture, and our agency will continue to hold all automakers accountable for defects to protect consumers' safety." Toyota also announced news of the settlement in a press release [text], stating that they were "pleased to have resolved these legacy issues related to the timeliness of prior recalls dating back to 2005." The total fines against Toyota amount to $48.8 million and will be paid into the Treasury Department's General Fund. Although the NHTSA investigations have been satisfied, consumer-fraud class action and personal injury lawsuits stemming from the same safety defects remain open in California as well as in federal court [JURIST reports].

In April, Toyota accepted a record civil penalty of $16.375 million [JURIST report], imposed by the NHTSA for a four-month delay in notifying the agency about a problem with "sticky" and "slow to return pedal" gas pedals in various car models. A week earlier, the US Judicial Panel on Multi-District Litigation (MDL) [official website] consolidated [JURIST report] more than 150 pending lawsuits against Toyota and transferred them to the US District Court for the Central District of California [official website]. In March, the NHTSA enlisted the help of the National Academy of Sciences (NAS) and NASA [official websites] to conduct a 15-month investigation into the sources of recent safety defects. Toyota has been under federal scrutiny since December 2009, and has conducted several recalls. Toyota's product recalls have been analyzed by Forum guest columnist Bruce Aronson of Creighton University School of Law in the op-ed Learning from Toyota's Troubles - Where's the Board? [JURIST op-ed].




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Bosnia war crimes court sentences Serb police for killing Muslim civilians
Jaclyn Belczyk on December 21, 2010 12:12 PM ET

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[JURIST] The war crimes court [official website] of Bosnia and Herzegovina (BiH) on Tuesday convicted four former Bosnian Serb policemen [press release, in Croatian] of killing at least 150 civilians during the 1992-1995 Bosnian civil war [JURIST news archive]. The court sentenced Dusan Jankovic to 27 years, Zoran Babic and Milorad Skrbic to 22 years, and Zeljko Stojnic to 15 years in prison. A fifth suspect, Milorad Radakovic, was acquitted for lack of evidence. The defendants were indicted [JURIST report] last January, accused of taking part in the August 21, 1992, massacre of at least 150 Muslims and Croat civilians as part of an ethnic cleansing on Mount Vlasic. The prisoners, who were told they were being released, were taken to the woods and forced to kneel at the edge of a ravine where they were then shot. Three other defendants were previously jailed in connection with the massacre after pleading guilty. In 2004, the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] sentenced [judgment, PDF] former Bosnian Serb "Intervention Squad" officer Darko Mrdja [ICTY backgrounder, PDF] to 17 years in prison for his role in the killings.

The BiH war crimes court was established in 2005 to assist with the ICTY caseload. Last month, a suspected war criminal was arrested [JURIST report] in connection with the 1995 Srebrenica massacre during the end of the Bosnian civil war. The Prosecutors Office for BiH [official website] announced that Dragan Crnogorac was arrested on suspicion for having committed genocide under Article 171 of the BiH criminal code [text, PDF]. 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. Also in August, the court issued genocide charges [JURIST report] against four former Bosnian Serb soldiers in connection with the Srebrenica massacr, 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 [JURIST report], Radomir Vukovic and Zoran Tomic, for their roles in the Srebrenica massacre and sentenced each to 31 years imprisonment.




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Venezuela passes law banning certain Internet content
Maureen Cosgrove on December 21, 2010 11:38 AM ET

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[JURIST] The National Assembly of Venezuela [official website, in Spanish] on Monday passed the Social Responsibility Law [text, PDF, in Spanish], which bans Internet content that promotes unrest among citizens or challenges legally established authorities. The law expands 2004 restrictions [AFP report] on television, radio and print media to Internet and electronic subscription services content. The National Assembly announced that the law aims to promote Venezuelan values [press release, in Spanish], guarantee freedom of expression and diffuse information that "contributes to the formation of a social conscience" of the population. Media organizations that violate the new measure face increased fines, as well as the possible revocation of media licenses for repeat offenders. The law moved through the unicameral National Assembly in less than a week by the ruling party led by President Hugo Chavez [BBC profile; JURIST news archive]. Opposition leaders disapprove of the new law, arguing that it restricts freedom of speech and violates constitutionally granted rights.

The Venezuelan government has faced criticism for repeatedly restricting freedom of expression. In June, the Inter-American Commission on Human Rights (IACHR) [official website] sent a letter to the Venezuelan government expressing concern over the increasing threat to freedom of expression [press release; JURIST report] in the country. In July 2009, Venezuelan Attorney General Luisa Ortega proposed legislation [press release, in Spanish; JURIST report] to limit the media's freedom of expression in certain circumstances, citing the importance of national security. Under the proposed law, journalists would face up to four years in prison for "threatening the social peace, security and independence of the nation, public order, stability of state institutions, mental health, and public morals and for generating a climate of impunity or insecurity. Prior to the proposed legislation, the US Commission on International Religious Freedom (USCIRF) [official website] added Venezuela to its "watch list" [JURIST report] of countries that limit religious freedom in May 2009. In February 2009, the US State Department (DOS) [official website] criticized Venezuela [JURIST report] for press restrictions in its 2008 Country Reports on Human Rights Practices.




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US execution rates continue to drop during 2010
Jaclyn Belczyk on December 21, 2010 10:12 AM ET

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[JURIST] The number of executions that took place in the US in 2010 was down 12 percent from 2009, according to the Death Penalty Information Center (DPIC) [advocacy website] annual report [text, PDF; press release, PDF] released Tuesday. There were 46 executions in 2010, compared to 52 in 2009. The report also notes that the number of new death sentences for 2010 is projected to be 114—close to 2009's figure of 112, which represented the lowest number of new death sentences since the US Supreme Court [official website] reinstated the death penalty in 1976. DPIC attributes the decrease in executions to several factors, including controversy over lethal injections [JURIST news archive] and evidence of mistakes in Texas:
The carrying out of executions remained controversial and cumbersome in 2010. Over 40 execution dates were stayed, many because of continuing problems with the process of lethal injections. ... Evidence of critical errors made in cases where an execution has occurred continued to mount in Texas. ... Such examples have caused deep concerns about the death penalty not only in Texas but across the country.
The report also states that a recent poll shows 61 percent of Americans would choose various alternative sentences over the death penalty as the proper punishment for murder.

The trends are similar to those observed in the DPIC's 2009 report [text, PDF; JURIST report]. While the report did show that the number of executions increased from 37 in 2008 [text, PDF; JURIST report], it attributed those numbers to a backlog of cases resulting from a de facto moratorium [JURIST report] on the death penalty. Executions resumed in the US in April 2008 after the Supreme Court lifted an effective ban on the death penalty by upholding the constitutionality of lethal injection [JURIST report].




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Belarus authorities arrest hundreds in post-election protests
Ann Riley on December 21, 2010 9:38 AM ET

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[JURIST] Belarusian police arrested hundreds of demonstrators on Monday, including seven of the nine presidential candidates, who were protesting the results of Sunday's presidential election [press releases, in Russian]. The official results, announced Monday, declared incumbent Alexander Lukashenko [BBC profile, JURIST news archive] the winner of the presidency for the fourth time with 79.7 percent of the vote. Opposition candidate Uladzimir Nyaklyaeu, when arrested, was allegedly removed from the hospital where he was being treated for injuries after being beaten by police. Belarusian Minister of Internal Affairs [official website] Anatoly Kuleshov announced that the activists were being charged with organizing an unsanctioned meeting and could face up to 15 years in prison. The US and EU [press release, PDF] led an international condemnation [AFP report] of the actions by the Belarusian police, calling the poll results illegitimate. The US Embassy in Minsk [official website] released the following statement [press release]:
The United States strongly condemns all election day violence in Belarus. We are especially concerned over excessive use of force by the authorities, including the beating and detention of several presidential candidates and violence against journalists and civil society activists. ... We call on the Government of Belarus to exercise restraint during the remainder of the electoral process, which should be free of further intimidation and violence.
Amnesty International (AI) [advocacy website] called for the immediate release of those arrested for peaceful participation. AI urged Belarus authorities to investigate the use of force by the riot police [press release] and incidents that instigated the violence.

Hundreds of activists were arrested after protesting Lukashenko's 2006 presidential win, including opposition candidate Alexander Milinkevich [JURIST reports].While Lukashenko has since sought to improve his country's ties with western nations, the US State Department [official website] has historically criticized Belarus' human rights record [2009 report; JURIST report]. The UN General Assembly Third Committee and the International Helsinki Federation for Human Rights [JURIST reports] have similarly denounced Belarus for human rights abuses. In 2008, the Belarus KGB [official website] detained at least 16 journalists [JURIST report] and searched their homes and offices for materials that allegedly libel Lukashenko. Also in 2008, Belarusian district courts sentenced at least 55 demonstrators [JURIST report], including journalists, for participating in a banned "Freedom Day" rally [BBC report] in Minsk to protest the presidency of Lukashenko. An opposition activist who was critical of Lukashenko during his 2006 presidential campaign [JURIST report] was sentenced [JURIST report] to three years in jail in 2008 by a Belarusian court after being arrested for making comments that Lukashenko was connected to the disappearances of opposition leaders Yuri Zakharenko, Viktor Gonchar and Anatoly Krasovsky [US State Department backgrounder].




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US violent crime rate drops for fourth straight year: FBI
Ann Riley on December 20, 2010 2:56 PM ET

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[JURIST] The FBI's preliminary annual crime statistics for 2010, released on Monday, show a decrease in violent crime [press release] for the fourth year in a row. According to the Preliminary Annual Uniform Crime Report of 2010 [text], the number of reported violent crimes between January and June decreased 6.2 percent when compared to statistics from the same period in 2009. Specifically, the number of murders dropped by 7.1 percent, robberies dropped by 10.7 percent, aggravated assaults dropped by 3.9 percent and forcible rapes dropped 6.2 percent. Additionally, property crime has continued to decrease for the eighth year in a row by 2.8 percent, specifically with 9.7 percent fewer motor vehicle thefts, 2.3 percent fewer larceny thefts, and 1.4 percent fewer burglaries. The FBI compiled the data from crime statistics from more than 12,000 city, county, university and college, state, tribal, and federal agencies nationwide.

In September, the FBI released its Crime in the United States 2009 [text; JURIST report] report disclosing that violent crime in the nation decreased 5.3 percent and property crime decreased 4.6 percent, when compared to data from 2008. The drop in 2009 follows a 1.9 percent decrease for 2008 and a 0.7 percent decrease [JURIST reports] for 2007. That came after two years of increasing rates of similar crimes, including a 2006 increase of 1.3 percent and a 2005 increase of 2.3 percent [JURIST reports].




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Sri Lanka to allow UN war crimes panel visit
John Paul Putney on December 20, 2010 12:13 PM ET

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[JURIST] The Sri Lankan Ministry of External Affairs [official website] announced Saturday that a UN war crimes panel will be allowed to visit [press release] the island to look into alleged war crimes in the final stages of the conflict with the Liberation Tigers of Tamil Eelam [JURIST news archive]. The decision represents a reversal after months of strong opposition [JURIST report] from the Sri Lankan government under President Mahinda Rajapaksa [official profile], who described the UN panel as an infringement of Sri Lanka's sovereignty. Instead, Rajapaksa appointed the Lessons Learned and Reconciliation Commission (LLRC) to investigate the final years of the conflict from the ceasefire in 2002 to its conclusion in 2009. The LLRC's credibility, however, has been contested by several human rights organizations, which say the commission lacks objectivity [PTI report]. The change in position follows economic sanctions including the withdrawal of trade concessions worth $150 million per year with the EU. The government has repeatedly denied accusations that its forces violated international law during the conflict. Skeptics have already questioned whether the UN panelists will be given free access to investigate. The three-person panel, appointed [JURIST report] by UN Secretary-General Ban Ki-Moon [official profile], has not set a date to travel to Sri Lanka.

In October, the Sri Lankan government defended the LLRC [JURIST report] after international human rights groups Human Rights Watch (HRW), Amnesty International (AI) and the International Crisis Group (ICG) [advocacy websites] publicly declined an invitation [joint letter; JURIST report] to testify, stating that they would welcome the opportunity to appear before the commission if they felt it was a genuine and credible effort to pursue accountability and reconciliation. The LLRC began public hearings [JURIST report] in August with an appearance by Sri Lanka Defense Secretary Gotabaya Rajapaksa [official profile], who defended the actions of the government [JURIST report] during the conflict. The LLRC was appointed [press release] in May amid repeated claims of war crimes by human rights groups after president Rajapksha initially rejected the UN panel [JURIST reports] in March.




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Ukraine prosecutors charge ex-PM Tymoshenko with misusing state funds
Jaclyn Belczyk on December 20, 2010 11:21 AM ET

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[JURIST] Ukrainian prosecutors on Monday filed criminal charges [press release, in Ukrainian] against opposition leader and former prime minister Yulia Tymoshenko [personal website; JURIST news archive] for allegedly misappropriating state funds during her time in office from 2007-2010. Tymoshenko, whose government was dissolved in March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian], is accused [Reuters report] of misusing money raised by selling carbon emission rights. Tymoshenko claims that the investigation is politically motivated and maintains her innocence. She has pledged to appear for questioning [press release, in Ukrainian], stating, "I fear nothing."

In May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. The probe was initiated in May 2004 and then suspended [JURIST report] in June 2005. In February, Tymoshenko withdrew a lawsuit [JURIST reports] filed in the Supreme Administrative Court of Ukraine claiming that the country's presidential election was corrupt. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election. The opposition leader has a history of being at the center of controversial political moments in Ukraine. In March 2009, she called for constitutional changes [JURIST report] to provide more separation between parliamentary and presidential powers. In October 2008, Tymoshenko withdrew a lawsuit [JURIST report] she had brought against then-president Victor Yushchenko [JURIST news archive] after he suspended a plan to hold early elections following the collapse of the country's coalition government. Before suspending the plan, Yushchenko had issued a decree abolishing a Kiev court after it tried to block [JURIST reports] his order dissolving parliament.




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Rights groups drop suit after government changes terror suspect defense licensing scheme
Jaclyn Belczyk on December 20, 2010 9:14 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on Friday dropped a lawsuit [notice of dismissal, PDF] challenging the US government's Specially Designated Global Terrorist (SDGT) licensing scheme after the government changed the policy. The groups announced in August that they would pursue a legal challenge [JURIST report] to the scheme despite being issued a license to represent Anwar al-Awlaqi [NYT profile; JURIST news archive], a US citizen who was labeled an SDGT in July. The SDGT designation is issued by the Treasury Department Office of Foreign Assets Control (OFAC) [official website] under federal law [50 USC § 1701 et seq. text], freezing the assets of the individual and preventing the provision of legal services without a license from the government. As of December 7, the policy was changed so that uncompensated lawyers may represent SDGT individuals in any US court or agency without first seeking a license from the government. ACLU legal fellow Jonathan Manes welcomed the new policy [press release], saying, "OFAC's regulations infringed both the free speech rights of attorneys and the due process rights of Americans, but the changes that OFAC has made in response to our lawsuit bring the regulations in line with the Constitution."

Earlier this month, a judge for the US District Court for the District of Columbia [official website] dismissed [opinion, PDF; JURIST report] a lawsuit [JURIST report] challenging the Obama administration's ability to conduct "targeted killings" in al-Awlaqi's case. Judge John Bates found that the court lacked jurisdiction over the case, filed by the ACLU and the CCR on behalf of Awlaqi's father, dismissing it on procedural grounds and noting that important questions remain. Bates heard arguments [JURIST report] in the case last month on the same day Awlaqi called for jihadist attacks on US citizens in a video posted on extremist websites. 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]. Earlier in November, 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.




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UK High Court overturns interim immigration cap
Matt Glenn on December 19, 2010 1:45 PM ET

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[JURIST] A UK High Court ruled Friday that a temporary immigration cap on skilled workers cannot stand because it was passed without sufficient parliamentary review. The court held that Home Secretary Theresa May [official profile] attempted to sidestep Parliament [BBC report] in enacting the temporary cap ahead of a permanent cap set to take effect next April. Judges ruled that May's attempt to circumvent parliamentary review violated the 1971 Immigration Act [text]. The government will have an opportunity to introduce the measure before Parliament in January. Immigration Minister Damian Green [official profile] said the government might appeal the ruling [Reuters report], but does not believe that this decision on the temporary cap will affect the permanent cap.

The Joint Council for the Welfare of Immigrants (JCWI) and the English Community Care Association (ECCA) [advocacy websites] filed their challenge to the cap [Independent report] in September. The temporary cap was announced in June [BBC report]. The caps affect only skilled non-EU workers, a segment of the immigrant population that some advocacy groups assert are vital to the UK economy [IPPR press release]. Officials argue that the temporary cap is necessary to avoid a flood of applications from immigrants seeking to enter the UK before the permanent cap goes into effect.




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Ninth Circuit strikes down ban on military recruitment of minors
Ann Riley on December 19, 2010 10:23 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday upheld [opinion, PDF] a lower court's ruling invalidating the ban on the military recruitment of minors passed by two Northern California cities. In 2008, voters in Eureka and Arcata each passed the Youth Protection Act [text], identical ballot measures which prohibited the military recruitment of children under the age of 18. The Coalition to Stop Recruiting Kids! [advocacy website] accused [materials] recruiters of ignoring the dangers of military service while exaggerating the benefits. The cities argued that the ordinances prohibit conduct already forbidden by the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [text], which the US ratified in 2002, and the Tenth Amendment [text]. The appeals court rejected the arguments because the ordinances impose greater restrictions on military recruitment than federal law and the regulation of federal military recruitment policies is not a power reserved to the states. The appeals court concluded that the ordinances were unconstitutional under the doctrine of intergovernmental immunity, first descrobed in McCulloch v. Maryland [opinion, text], because they expressly and directly regulate and discriminate against the federal government's recruitment policies and the conduct of federal agents.

Military recruitment policies recently became an issue in the June confirmation hearings [JURIST report] of Supreme Court Justice Elena Kagan [JURIST news archive]. During her deanship at Harvard Law School [academic website], Kagan reinstated a prohibition against military recruiters because the military's "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy violated the school nondiscrimination code. In 2006, the Supreme Court upheld [JURIST report] the 1996 Solomon Amendment [text, Georgetown backgrounder], which blocks federal funding for schools refusing to allow military recruitment on campus. The military's DADT policy was repealed [JURIST report] by the US Senate [official website] on Saturday. After September 11th, US military branches have increased recruiting waivers and continue to enlist a greater number of recruits with criminal records [JURIST reports].




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Senate votes to repeal 'Don't Ask Don't Tell'
Jay Carmella on December 18, 2010 5:00 PM ET

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[JURIST] The US Senate [official website] voted 65-31 [roll call vote] Saturday to repeal the military's controversial "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive], which prohibits openly gay men and women from serving in the armed forces. The Don't Ask, Don't Repeal Act of 2010 [HR 2965 materials), a piece of stand-alone legislation, was passed [JURIST report] on Wednesday by the US House of Representatives [official website]. Last week, the Senate fell three votes short [JURIST report] of the 60 votes necessary to approve a cloture motion on a defense spending bill [S 3454 materials] that whould have included a provision for repeal. The legislation will now go to President Obama, who is expected to sign it early next week. The president, secretary of defense and chairman of the Joint Chiefs of Staff must then certify [WSJ report] that the necessary policies and procedures are in place within the military. After receiving certification, the full repeal must take effect within 60 days.

The Obama administration has been pushing Congress to repeal DADT as courts have also been weighing in on the issue. Earlier this month, the Senate Armed Services Committee (SASC) [official website] heard conflicting testimony [JURIST report] from top military leaders on the services' readiness to repeal DADT. The hearing was held to review a Department of Defense (DOD) [official website] report [text, PDF; JURIST report], released earlier that week, which concluded that repealing DADT would only minimally effect military effectiveness, soldier retention and family readiness. Last month, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. Also in November, Defense Secretary Robert Gates called on the 112th Congress to repeal DADT [JURIST report]. Gates issued a memorandum in October limiting the authority to discharge openly gay service members [JURIST report] to five senior DOD officials. The policy was struck down by a federal court in September, but an appeals court has since stayed that ruling [JURIST reports]. 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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Arizona AG sues Bank of America for mortgage fraud
LaToya Sawyer on December 18, 2010 10:56 AM ET

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[JURIST] Arizona Attorney General Terry Goddard [official profile] filed a lawsuit [press release] against Bank of America (BOA) [corporate website] on Friday for misleading customers in mortgage modification and foreclosure practices. Specifically, the complaint [complaint; PDF] alleges that BOA violated a 2009 consent agreement, in which it agreed to develop and implement loan modification programs, by continuing to engage in widespread consumer fraud by misrepresenting to Arizona customers whether they were eligible for modifications of their mortgage loans. Additionally, Goddard alleges that BOA is also in violation of the Arizona Consumer Fraud Act [text] by failing to offer loan modifications in a timely and promised manner and deceiving customers about the details surrounding load modification requests. As one of the states most impacted by the foreclosure crisis, Goddard expressed the urgency for immediate loan relief in Arizona:
Bank of America has been the slowest of all the servicers to ramp up loss mitigation efforts in response to the housing crisis. It has shown callous disregard for the devastating effects its servicing practices have had on individual borrowers and on the economy as a whole...I am filing this lawsuit today because, after years of delay and broken promises, Arizonans should not have to wait any longer to seek redress. Our homeowners and communities need and deserve relief. Bank of America must be held accountable for its deceptive conduct and failed commitments.
As a result of the alleged deceptive practices, many Arizona homeowners claimed they have lost their homes, dwindled their savings, or now owe more on their homes than before, all while continuing to make their mortgage payments. Nevada, which has faced more foreclosures than Arizona, subsequently filed suit against Bank of America for similar practices.

Bank of America has recently been the target of other lawsuits alleging fraud. Earlier this month, the US Securities and Exchange Commission (SEC) [official website] reached a $137 million settlement agreement [press release; JURIST report] with BOA over fraud charges [order, PDF] in a lawsuit that claimed BOA used anti-competitive bidding processes with 20 state municipalities. In June, BOA subsidiary Countrywide Home Loans, Inc reached [JURIST report] a $108 million settlement agreement [text, PDF] with the Federal Trade Commission (FTC) [official website] in response to a lawsuit that charged it with collecting excessive fees from homeowners facing foreclosure. In February, the Attorney General of New York brought a suit against BOA for misleading shareholders [JURIST report] by not disclosing to share holders their loss profits.




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France court sentences Basque separatist leader to 20 years
Jaclyn Belczyk on December 17, 2010 4:38 PM ET

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[JURIST] A French court on Friday sentenced former Basque separatist leader Mikel Albizu Iriarte to 20 years in prison. Iriarte, also known as "Antza," was the leader of ETA [GlobalSecurity backgrounder; JURIST news archive], an organization blamed for the deaths of 829 people. Iriarte's partner Soledad Iparragirre Genetxea, also known as "Anboto," was also sentenced to 20 years as an ETA leader. Eight other people received sentences ranging from three to 16 years. The accomplices were arrested in 2004.

Earlier this month, a French appeals court sentenced another former ETA leader, Jose Antonio Urrutikoetxea, to seven years in prison for association with a terrorist organization. In March, the Spanish National Court [official website, in Spanish] sentenced [JURIST report] Arnaldo Otegi, a former leader of ETA's political wing Batasuna [BBC backgrounder; JURIST news archive], to two years in prison for promoting terrorism. The court held that comments made by Ortegi in a 2005 speech praised the terrorist acts committed by other ETA members. The court also disqualified Otegi from holding public office for 16 years. Otegi faces additional charges that could result in up to 30 years in prison.




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Germany prosecutors file war crimes charges against Rwandan genocide suspects
Sarah Paulsworth on December 17, 2010 2:40 PM ET

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[JURIST] German prosecutors announced on Friday they are pursuing war crimes charges against two Rwandan men suspected of ordering the killing of Congolese citizens. The men, Democratic Forces for the Liberation of Rwanda (FDLR) [JURIST news archive] leader Ignace Murwanashyaka [HJP profile] and FDLR deputy leader Straton Musoni, were arrested in Germany [JURIST report] in November 2009. The FDLR allegedly instigated the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive], in which 800,000 people were killed, before fleeing to the neighboring country of the Democratic Republic of Congo. According to German prosecutors, in addition to issuing an order that resulted in the killing of more than 200 people, Murwanashyaka and Musoni also issued orders that led to the rape of dozens of women [DW report] and the looting of numerous villages.

In August, German prosecutors charged a former Rwandan mayor with genocide [JURIST report] relating to his involvement in the Rwandan genocide. According to prosecutors, Onesphore Rwabukombe [Trial Watch profile] allegedly coordinated three massacres [AFP report] in which more than 3,700 Tutsis, who had sought refuge in a church, were killed. In June, a Finnish court convicted former Rwandan pastor [JURIST report] Francois Bazaramba on charges of genocide and murder and sentenced him to life in prison. Canadian prosecutors announced in November that a second suspect had been charged [JURIST report] under Canada's Crimes Against Humanity and War Crimes Act [text, PDF]. The first man charged under the act was Desire Munyaneza. In October, he was sentenced to life imprisonment [JURIST report] for war crimes committed during the Rwandan genocide. Munyaneza was convicted [JURIST report] in May 2009 of seven counts of genocide, crimes against humanity, and war crimes under the act.




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Federal appeals court declines to reconsider Conrad Black appeal
Jaclyn Belczyk on December 17, 2010 2:15 PM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Friday declined to reconsider the appeal of Canadian-born media mogul Conrad Black [CBC profile; JURIST news archive]. In October, a three-judge panel upheld two [opinion, PDF; JURIST report] of Black's four convictions, one for fraud and one for obstruction of justice. The court held that the other two fraud charges must be dismissed after the US Supreme Court upheld the "honest service" doctrine [18 USC § 1346 text] and ruled that it applied [JURIST report] to Black's case. On Friday, the court declined Black's request for an en banc rehearing to reconsider the two charges that were affirmed.

Black originally faced 17 counts of fraud, obstruction of justice, racketeering and tax evasion. He was accused [indictment, PDF] by the US government of diverting more than $80 million from Hollinger International and its shareholders [JURIST report] during Hollinger's $2.1 billion sale of several hundred Canadian newspapers. In July 2007, Black was convicted of mail fraud and obstruction of justice and sentenced to 78 months in prison. The court of appeals initially rejected Black's appeal, holding that § 1346 may be applied in a private setting regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim. The Supreme Court granted certiorari last year to determine the scope of the "honest services" clause, and held that Black had properly objected to the jury instructions at trial concerning the honest service doctrine and remanded the case to the circuit court for an opinion consistent with the judgment in Skilling v. United States [JURIST report]. Black is also currently facing charges before the US Tax Court for failure to pay nearly $71 million in taxes [Bloomberg report]. He denies being obligated to pay the taxes because he is not a US citizen.




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California regulators approve incentives for reducing greenhouse gas emissions
Sarah Paulsworth on December 17, 2010 12:58 PM ET

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[JURIST] California's Air Resources Board [official website] on Thursday approved measures that will provide incentives to companies and factories that decrease their greenhouse gas emissions [JURIST news archive]. The provisions are envisaged under Assembly Bill 32 (AB 32) [text, PDF; official backgrounder] and include a permit system [AP report] in which companies are allotted a quota of greenhouse emissions. If a company does not use all of its quota, it can sell to a company that is going to exceed its quota. Companies that exceed their quota can purchase "offsets" from companies involved in activities that lessen greenhouse emissions, like forestry. The program is reportedly the first of this type in the country. Supporters of the bill in California say they felt compelled to enact AB 32 after Congress failed to approve greenhouse gas reduction legislation. They hope they other states will follow suit.

In June, the US Senate [official website] defeated a resolution [materials; JURIST report] aimed at limiting the ability of the Environmental Protection Agency (EPA) [official website] to regulate greenhouse gas emissions under the Clean Air Act [materials]. The US Supreme Court [official website] affirmed the EPA's ability to regulate carbon emissions under the Clear Air Act in its 2007 ruling in Massachusetts v. Environmental Protection Agency [Cornell LII backgrounder; JURIST report]. In its ruling, the court held that if the EPA could show a link between greenhouse gas emissions and public health and welfare, then the act gives it the power to regulate emissions. The EPA announced last December [JURIST report] that it had found that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution. The EPA first announced its proposed finding [JURIST report] in April before undertaking a 60-day public comment period. Some have suggested that the EPA findings have allowed Congress to avoid the political fallout [JURIST comment] that could come from passing tough climate legislation. AB 32 was first signed into law [JURIST report] by California governor Arnold Schwarzenegger in 2006.




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France court convicts 13 Chilean officials for Pinochet-era disappearances
Jaclyn Belczyk on December 17, 2010 12:40 PM ET

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[JURIST] A French court on Friday convicted 13 former Chilean officials over the disappearance of four French citizens during the regime of Augusto Pinochet [BBC profile; JURIST news archive]. The defendants, primarily high-ranking military officers, were tried in absentia, and one defendant was acquitted. Two of the defendants were sentenced to life in prison [AP report]: Juan Manuel Contreras Sepulveda, Pinochet's chief of secret police, and Octavio Espinoza Bravo, an army colonel. The remaining defendants were sentenced to 15, 20, 25 and 30 years in prison. While the defendants were not present in court, it is hoped that the trial will offer some justice to the victims' families.

Pinochet himself was implicated in the disappearances, but he died in 2006 without ever facing trial. In July, the Chilean Supreme Court released a report detailing the secret fortune of Pinochet, estimating it at over $20 million. This report joins another on Pinochet's hidden assets released last September [JURIST report]. That report concluded that Pinochet amassed USD $25,978,602 in accounts held outside of Chile, of which $20,199,753 is suspected to have been embezzled from official funds. The September report also concluded that the funds were accumulated [Los Tiempos report, in Spanish] over the period from 1973 to 2004, when a US Senate sub-committee investigation first uncovered the accounts [JURIST report]. Victim advocates say the report supports allegations that Pinochet was the recipient of bribes and had other unlawful sources of income.




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Nokia sues Apple in Europe for patent infringement
Jaclyn Belczyk on December 17, 2010 11:29 AM ET

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[JURIST] Finnish telecommunications company Nokia [corporate website] on Thursday filed 13 patent infringement complaints [press release] against Apple [corporate website] in the UK, Germany and the Netherlands. The complaints, filed in the UK High Court, Dusseldorf and Mannheim District Courts in Germany and the District Court of the Hague, Netherlands, accuse Apple of infringing 13 of Nokia's patents, including touchscreen technology used on the the iPhone, iPad and iPod Touch. The complaints join 24 patent claims already filed by Nokia against Apple is US courts. In October 2009, Nokia sued [JURIST report] Apple in the US District Court for the District of Delaware [official website] for allegedly violating 10 patents on wireless technology on the iPhone. In May, Nokia filed a complaint [JURIST report] in the US District Court in the Western District for Wisconsin [official website] alleging that Apple iPad and iPhone 3G products infringe additional Nokia patents. Apple counter-sued last December, claiming Nokia had stolen 13 patents from the company.

Nokia is not the only competing corporation to have taken legal action against Apple over alleged patent infringements. Last week, a judge for the US District Court for the Western District of Washington [official website] dismissed a patent infringement lawsuit [JURIST report] by Microsoft co-founder Paul Allen against Apple and 10 other companies. Patent holding company NTP filed suit [JURIST report] in July against Apple and Google, among other smart phone makers, related to the use of e-mail systems utilizing technology patented by NTP. The US International Trade Commission (ITC) [official website] launched an investigation [JURIST report] in June into allegations by HTC Corp [corporate website] accusing Apple of patent infringement on certain portable electronic devices.




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US pledges support for UN indigenous rights declaration
LaToya Sawyer on December 17, 2010 11:19 AM ET

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[JURIST] US President Barack Obama announced Thursday that the US will support [press release] the UN Declaration on the Rights of Indigenous People [text]. The declaration, adopted [JURIST report] in 2007, is a non-binding treaty outlining the global human rights of approximately 370 million indigenous people and banning discrimination against them. The US was one of four member states that originally opposed adopting the treaty, citing concerns that its text conflicted with their countries' own laws, among other contentions. At Thursday's press conference, however, Obama specifically expressed support for the Tribal Nations within the United States and the ways in which the government was committed to executing strategies to help meet the challenges of the Native American communities:
Our strategy begins with the number one concern for all Americans right now -- and that's improving the economy and creating jobs. ... So to help spur the economy, we've boosted investment in roads throughout the Bureau of Indian Affairs and the Indian Reservation Road Program, and we've offered new loans to reach reservations with broadband. ... Another important part of our strategy is health care. We know that Native Americans die of illnesses like diabetes, pneumonia, flu -- even tuberculosis -- at far higher rates than the rest of the population. ... We're [also] rebuilding schools on tribal lands while helping to ensure that tribes play a bigger role in determining what their children learn. ... We're also working to improve the programs available to students at tribal colleges. And I'm confident that if we keep up our efforts, that if we continue to work together, that we will live up to the simple motto and we will achieve a brighter future for the First Americans and for all Americans.
In addition, the US plans to implement strategies to attack the increasingly high crime rates that plague the Tribal Nation communities, to put more land in the hands of tribes and to upset the long-term history of government mistreatment of the Native American communities.

The US is the last member state of those in opposition to sign the declaration. Last month, Canada endorsed [JURIST report] the declaration citing [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. In April, New Zealand endorsed [AFP report] the declaration, as did Australia [JURIST report] in 2009.




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Turkish court opens landmark coup trial
Jaclyn Belczyk on December 17, 2010 9:25 AM ET

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[JURIST] A Turkish court on Thursday began the trial of nearly 200 military officers accused of plotting to overthrow the government. The 2003 Balyoz Security Operation Plan [Taraf report, in Turkish; Al Jazeera backgrounder], or "Sledgehammer" plot [JURIST news archive], which included plans to bomb Istanbul mosques and provoke Greece into shooting down a Turkish plane in order to undermine the government, was revealed by the Taraf [media website] newspaper in January. The military has maintained that the plot was a war game exercise. If convicted, the 196 defendants face up to 20 years in prison. The trial could take years to complete.

In June, the trial of 33 retired and active naval officers began [JURIST report]. The officers were accused of attempting to overthrow the government and establish military rule in another plot planned by a group called Ergenekon [BBC backgrounder; JURIST news archive]. The group allegedly planned to assassinate prominent members of Turkey's Christian and Jewish minority groups, blame Islamic terrorists for the deaths and use this to delegitimize the the ruling Justice and Development Party (AKP) [party website]. Prosecutors in the case will attempt to link the 33 defendants to a plan to detonate a bomb in an Istanbul museum and the deaths of a Catholic priest, Protestant missionaries and journalist Hrant Dink. The investigations have strained relations between the religiously-inclined government and the secular military, which has been responsible for four coups in the last 50 years. Since the founding of the modern republic in 1923, the military has regarded itself as the defender of the secular legacy of founder Mustafa Kemal Ataturk [Turkish News profile].




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Europe rights court rules against Ireland abortion ban
John Paul Putney on December 16, 2010 4:38 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] Thursday that Ireland failed to provide "effective and accessible procedures" to allow a Lithuanian women to assert her constitutional right to a lawful abortion [JURIST news archive]. Ireland has some of the most conservative abortion laws in Europe, prohibiting abortions except where there is a real and substantial risk to the life of the mother [NYT report]. The case came before the court [JURIST report] after three women filed suit alleging their rights were violated when they were forced to travel abroad for an abortion in 2005. Since a 1983 referendum, unborn children are afforded equal constitutional rights as mothers [Guardian report]. In 1992, the Ireland Supreme Court [official website] ruled that abortion was legal in Ireland when the mother's life was at risk, but the ECHR noted that doctors are loathe to counsel patients on the matter because they run the risk of "criminal conviction and imprisonment" if a doctor's medical opinion is subsequently overruled by another opinion. The ECHR stopped short of holding that abortion was an unlimited right, stating:
The Court has also previously found, citing with approval the case-law of the former Commission, that legislation regulating the interruption of pregnancy touches upon the sphere of the private life of the woman, the Court emphasising [sic] that Article 8 cannot be interpreted as meaning that pregnancy and its termination pertain uniquely to the woman's private life as, whenever a woman is pregnant, her private life becomes closely connected with the developing foetus. The woman's right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child.
The ECHR ruling is binding on Ireland, and Health Minister Mary Harvey acknowledged that new legislation will be necessary to give effect to the ruling [Reuters report], indicating it will take some time because of its complex and sensitive nature [Irish Times report]. That burden may fall on the incoming government following elections in March. Both pro-life and pro-choice groups have claimed the ECHR ruling as a victory.

Abortion has long been a hotly contested issue domestically and internationally. On Tuesday, an Alaska Superior Court judge refused to block a law requiring parental notification for women under the age of 18 [JURIST report] to have an abortion. Last Month, Colorado voters struck down a ballot initiative [text, PDF] that would have amended the state's constitution [text] to extend rights to fetuses and would have effectively outlawed abortion [JURIST report]. Earlier this year, reform to Spain's abortion laws sparked widespread protests and elicited a constitutional challenge [JURIST reports] from Spain's conservative Popular Party.




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Guantanamo detainee asks Poland to probe alleged CIA secret prison
Jaclyn Belczyk on December 16, 2010 4:14 PM ET

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[JURIST] Lawyers for Guantanamo Bay detainee Abu Zubaydah on Thursday asked Polish prosecutors to investigate claims that he was abused in a secret CIA prison [JURIST news archives] in the country. Zubaydah, a top al Qaeda suspect, alleges that he was transferred to Poland and subjected to enhanced interrogation techniques. Zabaydah's lawyer said he is hoping that his client's case will be investigated in conjunction with an investigation [JURIST report] into the alleged mistreatment of accused USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri [NYT profile]. Both Zubaydah and al-Nashiri remain in detention at Guantanamo.

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




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Federal judge sentences JFK Airport bomb plotter to life in prison
Jaclyn Belczyk on December 16, 2010 1:47 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of New York [official website] on Wednesday sentenced former Guyana parliament member Abdul Kadir to life in prison [FBI press release] for plotting to blow up John F Kennedy International Airport [official website]. Kadir and coconspirator Russell Defreitas, originally arrested [JURIST report] in 2007, were convicted by a federal jury in July on charges of conspiracy to attack a public transportation system, conspiracy to destroy a building by fire or explosive, conspiracy to attack aircraft and aircraft materials, conspiracy to destroy international airport facilities and conspiracy to attack a mass transportation facility. A third conspirator, Abdel Nur, pleaded guilty in June to supporting the plot and faces a sentence of up to 15 years. A fourth member of the plot, Kareem Ibrahim, faces trial on the same charges as Kadir. US Attorney Loretta Lynch said, "'[t]he sentence imposed on Abdul Kadir sends a powerful and clear message. We will bring to justice those who plot to attack the United States of America."

According to the original complaint [text, PDF], the plot was intended to "cause greater destruction than in the Sept. 11 attacks," according to one of the suspects. The plot could have destroyed parts of New York's borough of Queens [official website], where an underground fuel pipeline serving the airport runs. Authorities were tracking the plot for more than a year before making the arrests. Defreitas had said he formed the plot more than a decade ago when he worked as a cargo handler. He said he chose the airport because its destruction would put "the whole country in mourning."




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Accused plane bomber facing additional federal charges
Andrea Bottorff on December 16, 2010 1:20 PM ET

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[JURIST] Nigerian national Umar Farouk Abdulmutallab [BBC profile; JURIST news archive], accused of attempting to set off an explosive device on a flight last December, was arraigned Thursday in the US District Court for the Eastern District of Michigan [official website; case materials] on two new federal charges. A federal grand jury charged Abdulmutallab Wednesday on two new counts of conspiracy and firearm possession, in addition to the six previous charges [JURIST report] of attempted use of a weapon of mass destruction, attempted murder within the special aircraft jurisdiction of the US, willful attempt to destroy or wreck an aircraft, willfully placing a destructive device on an aircraft, use of a firearm/destructive device during and in relation to a crime of violence, and possession of a firearm/destructive device in furtherance of a crime of violence. Federal Judge Nancy Edmunds granted Abdulmutallab's request to represent himself, but also appointed a standby lawyer who will have access to discovery materials, saying that the appointment was necessary because of Abdulmutallab's lack of training in US law [TNN report]. Edmunds scheduled the next pretrial hearing for January 12 and set a deadline of February 26 for pretrial motions.

Abdulmutallab fired his court-appointed lawyers [JURIST report] in September, accusing them of not serving his best interest and saying that he preferred to represent himself. Edmunds cautioned Abdulmutallab about proceeding without representation and questioned him for approximately 30 minutes regarding his knowledge of the law and criminal procedure. She ultimately allowed Abdulmutallab to dismiss his court-appointed lawyers, although she indicated that she believed the decision was not wise. In June, Edmunds denied a motion [JURIST report] filed on behalf of the Nigerian government seeking to formally observe Abdulmutallab's trial, stating that the court record is already open to the public. The government sought to observe the proceedings [Bloomberg report] in order to guarantee that Nigerian-born Abdulmutallab received a fair trial and that the reputation of Nigeria was protected, but the lawyer for the government later asked to withdraw the motion. In February, US Attorney General Eric Holder [official website] defended his decision [JURIST report] to try the accused bomber in federal court rather than a military tribunal. Abdulmutallab has pleaded not guilty [JURIST report] to the charges against him for allegedly attempting to set off an explosive device on Northwest Airlines Flight 253 bound from Amsterdam to Detroit.




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Rights court rules Brazil amnesty law invalid
Jaclyn Belczyk on December 16, 2010 11:35 AM ET

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[JURIST] The Inter-American Court of Human Rights [official website, in Spanish] has ruled [judgment, PDF, in Portuguese; press release, PDF, in Spanish] that a 1979 Brazilian amnesty law [text, PDF, in Portuguese] is invalid and that Brazil is responsible for the disappearance of 61 people during its 1964-1985 military dictatorship. In a decision announced Tuesday, the court found that the law, which shielded military officials from prosecution, was incompatible with the American Convention on Human Rights [text]. The court ordered the Brazilian government to conduct a criminal investigation into an anti-guerrilla military operation in the Araguaia region between 1972 and 1974. The court also ruled that 42 direct relatives of the victims should receive USD $45,000 each in compensation for their suffering and that 28 indirect relatives should receive $15,000 each. The ruled that all 70 relatives should also receive $3,000 each for medical and psychological treatment. Brazil's president-elect Dilma Rousseff, who takes office on January 1, has pledged to bring human rights violators to justice [NYT report] and will be responsible for implementing the court's decision.

Other Latin American countries have recently taken steps to end amnesties for their military dictatorships. In March, Amnesty International (AI) [advocacy website] urged government officials in El Salvador [JURIST report] to repeal [press release] a 1993 amnesty law that prevents any investigation [JURIST report] into killings committed during the country's 12-year civil war [PBS backgrounder], including the killing of respected Catholic Archbishop Oscar Romero [BBC backgrounder, JURIST news archive]. Last year, the Uruguayan Supreme Court struck down [JURIST report] the country’s Expiry Law, which granted amnesty to military officials accused of human rights violations during the country's 1973-1985 dictatorship. In 2005, Argentina's Supreme Court struck down similar amnesty laws [JURIST report] adopted in the 1980s to protect potential defendants, prompting the government to reopen hundreds of human rights cases.




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UN Security Council ends Iraq sanctions
Andrea Bottorff on December 16, 2010 10:33 AM ET

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[JURIST] The UN Security Council [official website] on Wednesday voted to remove sanctions [news release] imposed on Iraq between 1991 and 2003 during the country's wars under former Iraqi dictator Suddam Hussein [JURIST news archive]. The Security Council approved three resolutions [fact sheet, PDF] that eliminated the Development Fund for Iraq, lifted sanctions prohibiting civil nuclear projects and ended the controversial Oil-for-Food program [official website; JURIST news archive]. UN Secretary-General Ban Ki-moon [official website] praised the decision [statement] as a "milestone" and said that the Council "recognize[d] how far the country has come in key aspects of its journey to normalize its status in the community of nations," particularly Iraq's participation in international anti-nuclear proliferation treaties. US Vice President Joe Biden [official profile] chaired the meeting and commended [statement] the UN Assistance Mission in Iraq (UNAMI) [official website] for its work in providing relief to the Iraqi people, a job that will likely continue as the US plans to withdraw troops from the country. The US will hold the Security Council presidency for the month of December.

The most recent UN Security Council resolutions mark a turning point for Iraq and an end to the UN oil-for-food program that generated international scandals. In July, General Electric Co. (GE) [corporate website] agreed to a $23.5 million settlement [press release; JURIST report] after the US Securities and Exchange Commission (SEC) [official website] filed a complaint [text, PDF] accusing GE of bribing Iraqi officials to receive contracts under the oil-for-food program. The SEC claimed that, between 2000 and 2003, four of GE's subsidiaries gave millions of dollars worth of computer equipment, medical supplies and services to the Iraqi Health Ministry in exchange for contract deals. In April, a Paris judge charged [JURIST report] French oil company Total [corporate website] with bribery and complicity in connection with the scandal. According to the 2005 Volcker report, published by a UN-appointed Independent Inquiry Committee [official website] investigating corruption in the oil-for-food program, oil companies like Total allegedly paid Iraqi officials over $1.5 billion in illegal kickbacks [materials] in exchange for being selected as oil purchasers. Over the last three years, oil company Chevron [corporate website] also paid a large settlement to the SEC concerning misuse of the program, and two Texan oil barons, David Chalmers and Oscar Wyatt Jr. [JURIST reports], were sentenced to prison for their roles in the scandal. The oil-for-food program allowed the Iraqi government of Saddam Hussein, under UN sanctions in the wake of the first Gulf War, to sell limited stocks of oil in return for foodstuffs and other humanitarian supplies.




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Italy appeals court increases sentences of 23 former CIA agents
Jaclyn Belczyk on December 16, 2010 9:14 AM ET

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[JURIST] An Italian appeals court on Wednesday upheld the convictions of 23 former CIA agents for the 2003 kidnapping and rendition [JURIST news archive] of Egyptian terror suspect Osama Moustafa Hassan Nasr, increasing their sentences. Former Milan CIA station chief Robert Seldon Lady was originally sentenced [JURIST report] to eight years in prison, while 22 other Americans were sentenced to five years. Lady's sentence was increased [AFP report] Wednesday to nine years, while the other sentences were increased to seven years. The US has refused to extradite the defendants, who were sentenced in absentia. Defense lawyers plan to appeal. Amnesty International [advocacy website] welcomed the ruling [press release] but called on the Italian government to hold Italian officials accountable as well.

Nasr, also known as Abu Omar, was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released [JURIST reports] in February 2007. In September 2009, the US Department of Justice (DOJ) [official website] filed a motion to dismiss [JURIST report] a lawsuit brought by former State Department official Sabrina De Sousa seeking diplomatic immunity against the Italian charges. De Sousa was one of the Americans whose sentence was increased to seven years. The CIA's rendition program has been the source of much controversy and litigation. Last year, President Barack Obama announced [JURIST report] the US would continue its practice of sending terror detainees to third countries for interrogation with increased oversight by the State Department to prevent torture.




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House votes to repeal 'Don't Ask Don't Tell'
Jaclyn Belczyk on December 15, 2010 8:54 PM ET

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[JURIST] The US House of Representatives [official website] voted 250-175 [roll call vote] Wednesday to repeal the military's controversial "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive], which prohibits openly gay men and women from serving in the armed forces. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials], a piece of stand-alone legislation, was passed less than a week after the Senate [official website] fell three votes short [JURIST report] of the 60 votes necessary to approve a cloture motion on a defense spending bill [S 3454 materials] that would have included a provision for repeal. After the vote, Senators Joseph Lieberman (I-CT) and Susan Collins (R-ME) [official websites] said they plan to introduce a separate piece of legislation [press release] to repeal the ban, but its passage before the end of the current legislative session is uncertain. The House previously voted for repeal [JURIST report] in May.

The Obama administration has been pushing Congress to repeal DADT as courts have also been weighing in on the issue. Earlier this month, the Senate Armed Services Committee (SASC) [official website] heard conflicting testimony [JURIST report] from top military leaders on the services' readiness to repeal DADT. The hearing was held to review a Department of Defense (DOD) [official website] report [text, PDF; JURIST report], released earlier that week, which concluded that repealing DADT would only minimally effect military effectiveness, soldier retention and family readiness. Last month, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. Also in November, Defense Secretary Robert Gates called on the 112th Congress to repeal DADT [JURIST report]. Gates issued a memorandum in October limiting the authority to discharge openly gay service members [JURIST report] to five senior DOD officials. The policy was struck down by a federal court in September, but an appeals court has since stayed that ruling [JURIST reports]. 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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DOJ sues BP over Gulf oil spill
Jaclyn Belczyk on December 15, 2010 2:48 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed suit [complaint text; press release] Wednesday against units of British Petroleum (BP) [corporate website] and several other companies over the April Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive], which resulted in an estimated 4.9 million barrels of oil flowing into the Gulf of Mexico. The lawsuit, filed in the US District Court for the Eastern District of Louisiana [official website], seeks civil penalties under the Clean Water Act and asks the court to declare eight of the defendants liable without limitation under the Oil Pollution Act [materials] for all removal costs and damages caused by the oil spill, including damages to natural resources. The defendants include BP Exploration and Production Inc.; Anadarko Exploration & Production LP and Anadarko Petroleum Corporation (Anadarko Defendants); MOEX Offshore 2007 LLC, Triton Asset Leasing GMBH, Transocean Holdings LLC, Transocean Offshore Deepwater Drilling Inc. and Transocean Deepwater Inc. (Transocean Defendants); and BP's insurer, QBE Underwriting Ltd./Lloyd's Syndicate 1036. Announcing the lawsuit, US Attorney General Eric Holder said:
We intend to prove that these defendants are responsible for government removal costs, economic losses, and environmental damages without limitation. Even though the spill has been contained, the Department's focus on investigating this disaster and preventing future devastation has not wavered. Both our civil and criminal investigations continue, and our work to ensure that the American taxpayers are not forced to bear the costs of restoring the gulf area and its economy is moving forward.
No dollar amount has been placed on the suit, as damages could take years to calculate, and a DOJ spokesperson said that additional defendants and claims [WSJ report] could be added later.

The government's lawsuit is one of hundreds filed against BP and other companies in connection with the oil spill. In August, the US Judicial Panel on Multidistrict Litigation [official website] selected [order, PDF] Judge Carl Barbier [FJC profile] to hear [JURIST report] more than 300 such lawsuits. Also that month, BP and the DOJ announced the completion of negotiations over the implementation of a $20 billion fund [JURIST reports] to aid victims of the oil spill. In July, a class-action lawsuit [complaint, PDF; JURIST report] was filed against BP in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits.




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Kosovo PM named in Council of Europe organ trafficking report
Carrie Schimizzi on December 15, 2010 2:04 PM ET

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[JURIST] Kosovar Prime Minister Hasham Thaci [official profile] was named Tuesday in a draft report [text; press release] by Council of Europe [official website] member Dick Marty [BBC profile] as the "boss" of an illegal criminal enterprise that trafficked human organs and drugs during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. The report alleges that Thaci was the leader of the Kosovo Libertarian Army (KLA) [GlobalSecurity backgrounder; JURIST news archive] Drenica Group, a criminal network that controlled the heroin trade and the black market trafficking of kidneys of executed Serbian and Albanian war prisoners. The report goes on to accuse Thaci of evading justice by "eliminating or intimidating into silence the majority of the potential and actual witnesses against them" and by "faltering political will on the part of the international community to effectively prosecute the former leaders of the KLA" without which they "would have been convicted of serious crimes and would by now be serving lengthy prison sentences." News of the report's accusations were leaked by The Guardian earlier this week to which the Kosovar government responded [press release] by calling the allegations false and an attempt to harm the reputation of Thaci, whose party won the nation's parliamentary elections earlier this year:
The citizens of the Republic of Kosovo and wider international opinion will not believe the ill-intentioned fabrications of those who oppose the independence and sovereignty of our country and in absolutely no way, will they allow hooligans to defile the pure war of the Kosovo Liberation Army and the sacrifice of all the citizens of our country. The Government of the Republic of Kosovo calls on all member states of the Council of Europe to strongly oppose this fabricated and tendentious report and to not join the side of those who at all costs want to obstruct the stability, progress and good governance of the Republic of Kosovo.
The draft report will be submitted [NY Times report] to a legal affairs committee on Thursday and will be formally debated in the Parliamentary Assembly on January 25.

Claims of Kosovo's involvement in human organ trafficking originated in 2008 when former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Carla Del Ponte [BBC profile; JURIST news archive] alleged in a book [JURIST report] on her time at the tribunal that about 300 Serbian and other non-Albanian prisoners were victims of organ trafficking [JURIST news archive] during the war. That year, Serbian prosecutors condemned Albania's refusal to initiate [JURIST report] an investigation into allegations of organ trafficking in Kosovo. Albanian Prosecutor General Ina Rama refused to cooperate with Serbian war crimes prosecutor Vladimir Vukcevic [official website] and said that her country would only pursue the allegations if the ICTY decided to reopen its investigation.




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Rights group warns Australia detainee transfer program may violate international law
Carrie Schimizzi on December 15, 2010 12:59 PM ET

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[JURIST] Australia's new Afghan detainee transfer policy may violate international human rights laws [press release], Amnesty International (AI) [advocacy website] warned Tuesday. The new detainee management system, announced [press release] Tuesday by Australian Minister of Defence Stephen Smith [official website], provides for the systematic transfer of "high risk" detainees to US forces and "low risk" detainees to Afghan forces. According to AI Asia-Pacific director Sam Zarifi, the new policy puts detainees at risk of torture and mistreatment at the hands of the National Directorate of Security (NDS), which has been previously linked to human rights abuses. "By handing over detainees to the NDS, where they are at risk of torture or other ill-treatment, Australia could be in violation of its international obligations to protect individuals from such treatment," Zarifi said. Until August of this year, any detainees apprehended by the Australian Defence Force (ADF) [official website] had been the responsibility of Dutch forces that, according to AI, had "safeguards" in place to assure detainees would not be mistreated. In his announcement, Smith stated that the new policies were in compliance with international law:
The detainee management framework draws on applicable international standards and advice from international organisations, including the International Committee of the Red Cross (ICRC) [official website]. It is consistent with the Laws of Armed Conflict and the Geneva Convention [text, PDF]. Australian officials, both ADF and officials from the Department of Foreign Affairs and Trade, continue to monitor detainees'; welfare and conditions while they are in US or Afghan custody, until they are released or sentenced. The monitoring team visit detainees shortly after transfer and around every four weeks after the initial visits.
Smith also reported that, since August, only 64 out of 348 detainees have been transferred to US or Afghan custody, with the rest being released. He also stated that both US and Afghan officials have assured that detainees will be treated humanely. According to Zarifi, AI is skeptical of these arrangements, which he says should be "viewed with extreme caution, given the very poor record of the US and Afghan governments when it comes to mistreating detainees."

An internal military probe in 2008 cleared [JURIST report] members of the Australian Defence Force of allegations that they mistreated four Taliban members detained following the death of an Australian soldier in Afghanistan. The investigation [JURIST report] also cleared soldiers of any wrongdoing in connection with civilian deaths during the November battle, but said that such deaths were "highly regrettable." Concerns over detainee abuse were first brought to light in a 2007 report [JURIST report] in AI which said that the International Security Assistance Force (ISAF) [official website], led by the North Atlantic Treaty Organization (NATO), was exposing terrorism detainees to risks of torture by transferring NATO-held detainees into custody of Afghanistan authorities. AI's report focused on actions by Belgium, Canada, the Netherlands, Norway and the UK, saying that the forces from those countries have been transferring terror detainees to the NDS, despite numerous reports of torture.




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ICC prosecutor accuses 6 Kenyans of orchestrating 2007 post-election violence
Brian Jackson on December 15, 2010 10:19 AM ET

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[JURIST] The chief prosecutor of the International Criminal Court (ICC) [official website] on Wednesday issued summonses for six Kenyan citizens [press release] believed to be responsible for post-election violence in 2007 [JURIST news archive] that resulted in more than 1,000 deaths in that country. The six individuals include current Deputy Prime Minister Uhuru Muigai Kenyatta and several Ministry heads. All six are believed to have fomented violence, rape and destruction of property during the 30 days of violence. Two summonses were issued [Ruto, Kosgey, Sang summons, PDF; Muthara, Kenyatta, Ali summons, PDF], each for three of the individuals in question, pursuant to Article 58 of the Rome Statute [PDF], for crimes against humanity. In issuing the summonses, ICC Prosecutor Luis Moreno-Ocampo [official website] stated:
The post election period of 2007-2008 was one of the most violent periods of the nation's history. These were not just crimes against innocent Kenyans. They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.
US President Barack Obama has called on the Kenyan government to cooperate [press release] fully with the ICC, even as the news of the summonses was met with derision by Kenyan officials [KBC report].

Earlier this month, Moreno-Ocampo rejected the notion [JURIST report] that threats of violence would delay the prosecution of the as-of-that-time unnamed suspects. Last month, the Kenyan National Commission on Human Rights, which implicated former Cabinet minster William Ruto of interfering with the ICC investigation, denied accusations that it had bribed witnesses [JURIST report]. Moreno-Campo had also said that the court will not use testimony [JURIST report] from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. In September, Kenyan businessman Joseph Gathungu filed a lawsuit challenging the constitutionality [JURIST report] of the ICC investigation into the post-election violence.




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Federal appeals court rules valid search warrant required for e-mail search
Brian Jackson on December 15, 2010 9:23 AM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] ruled [opinion, PDF] Tuesday that e-mail is entitled to Fourth Amendment [LII materials] protection. The 98-page opinion overturned the prison sentence of Steven Warshak, the founder of Berkeley Premium Nutraceuticals Inc. [corporate website], who was convicted on 93 counts of conspiracy, money laundering and fraud in 2008. The court held that government reliance on the Stored Communications Act [18 USC §§ 2701 et seq materials] did not warrant overturning Warshak's conviction, but that the government violated Warshak's Fourth Amendment rights when it ordered his Internet service provider (ISP) to turn over his e-mails. In finding this violation, the court acknowledged that Warshak enjoyed "a reasonable expectation of privacy" in his e-mails by comparing e-mail to more traditional forms of communication, such as telephone conversations, found to be protected in United States v. Katz [opinion text]. The court stated:
Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become 'so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification.' It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.
The case was ultimately remanded for a recalculation of Warshak's prison sentence, but his conviction and $45 million fine were affirmed.

The application of the Fourth Amendment to new technologies has created a number of issues that have recently come before the courts. In late November, the US Court of Appeals for the District of Columbia Circuit declined a request [JURIST report] by the US Department of Justice to rehear a case in which that court found that the government could not use GPS to track suspects without a warrant. In September, a three-judge panel for the US Court of Appeals for the Third Circuit ruled 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 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 ruled that police must obtain a warrant before searching data stored in a cell phone [JURIST report].




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Georgia woman arrested for wearing headscarf in court files lawsuit
Jaclyn Belczyk on December 15, 2010 8:52 AM ET

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[JURIST] The American Civil Liberties Union of Georgia (ACLUGA) [advocacy website] filed a lawsuit [complaint, PDF; press release] Tuesday on behalf of a Muslim woman who was arrested for refusing to remove her headscarf [JURIST news archive], or hijab, in court. Lisa Valentine was arrested in December 2008 and ordered to serve 10 days in jail [JURIST report] for contempt of court after she refused to remove her headscarf upon entering a security checkpoint in an Atlanta courtroom. Douglasville Municipal Court [official website] Judge Keith Rollins found Valentine in contempt for violating a court policy that prohibits wearing headgear in court. Valentine, who also goes by her Islamic name Miedah, was released from jail later in the day after the Council on American-Islamic Relations (CAIR) [advocacy website] called on the US Department of Justice (DOJ) [official website] to investigate the incident [press release], although jail officials did not confirm their reason for letting her go. The ACLUGA claims that the defendants, the city of Douglasville and the arresting officers, violated Valetine's First and Fourth Amendment rights, as well as the Religious Land Use and Institutionalized Persons Act [text]. According to the complaint, "[a]s a result of Defendants' conduct, Mrs. Valentine suffered, and continues to suffer, extreme humiliation, shame, mental anguish, and emotional distress."

The wearing of religious attire in courtrooms and other public places has been a controversial subject. In May, the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that a Muslim woman's religious rights were not violated by police officers when she was forced to remove her headscarf while being detained in a holding cell. In April, a judge for the US District Court for the Eastern District of Michigan [official website] dismissed [JURIST report] a lawsuit against a Michigan judge who ordered a Muslim woman to remove her headscarf in court. The suit [complaint, PDF] was filed by CAIR on behalf of Raneen Albaghdady against Judge William Callahan of the Wayne County Circuit Court. Last year, a Spanish lawyer filed a complaint [JURIST report] with the General Council of the Judiciary [official website, in Spanish] alleging abuse of power and discrimination after a National Court judge asked her to leave the courtroom for declining to remove her hijab.




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Service members discharged under 'Don't Ask Don't Tell' file suit seeking reinstatement
Ashley Hileman on December 14, 2010 1:47 PM ET

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[JURIST] Three former service members discharged under "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] filed a complaint [text, PDF] against the Department of Defense (DOD) [official website] Monday, seeking reinstatement and the declaration that their discharges under the statute, and the statute itself, are unconstitutional. The suit was filed by Servicemembers Legal Defense Network (SLDN) [advocacy website] on behalf of Michael Almy, Anthony Loverde and Jason Knight in the US District Court for the Northern District of California [official website]. All three received numerous military awards and decorations during their respective service and each would have continued to serve had they not been discharged under DADT. Knight, due to a bureaucratic error made on his discharge papers, was eligible for active duty recall and subsequently deployed to Kuwait, where he served as an openly homosexual man for over a year until he was discharged for a second time under the statute. In a statement [press release] made regarding the suit, SLDN's Executive Director Aubrey Sarvis said:
This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law. This dispute can be resolved by Congress or by the courts. With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country. The plaintiffs are three service members who want to serve their country again. They represent some of our best and brightest who were fired because of who they are, despite their decorated records.
The military policy is highly controversial and its continued enforcement has been attacked on numerous fronts.

Last week, the US Senate [official website] failed to advance a vote on a bill [JURIST report] to repeal DADT. The Senate fell three votes short [roll call vote] of the 60 votes necessary to approve a cloture motion on a defense spending bill [S 3454 materials] that would include a provision for repeal. After the vote, Senators Joseph Lieberman (I-CT) and Susan Collins (R-ME) [official websites] said they plan to introduce a separate piece of legislation [press release] to repeal the ban, but it appears unlikely that such a bill could pass before the end of the current legislative session. President Barack Obama [official website] expressed disappointment with the vote and called on Congress to continue to work toward repealing the ban. The Senate previously failed [JURIST report] to invoke cloture to repeal DADT in September. 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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Rights groups ask Spain court to open probe into Bush-era 'torture'
Jaclyn Belczyk on December 14, 2010 1:26 PM ET

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[JURIST] The Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR) [advocacy websites] filed a joint expert opinion [text, PDF] Tuesday urging a Spanish court to open an investigation into six former Bush administration officials for their roles in the torture [JURIST news archive] of detainees. The complaint against the officials, including John Yoo and Jay Bybee, who authored memos [JURIST news archive] authorizing so-called enhanced interrogation techniques, was originally filed [JURIST report] in March 2009. The groups urged Judge Eloy Velasco to open the investigation because the US government has failed to do so. The groups claim [press release] that recent cables published by Wikileaks demonstrate that the Obama administration has "acted to undermine the legal process through political means and disregarded the independence of the Spanish judiciary." According to the filing:
The United States must not be permitted to continue to stall the course of justice, whether domestically or in Spain. The Geneva Conventions and the Torture Statute both mandate that the authors of violations contained therein be brought to justice and subjected to criminal prosecutions. This Court has issued Letters Rogatory pursuant to Treaty on Mutual Legal Assistance in Criminal Matters to ascertain whether the United States is fulfilling its obligations under those treaties through pending criminal investigations in an effort to ensure that it is exercising its jurisdiction efficiently and appropriately. However, with the passage of 19 months and after three formal requests, we respectfully submit that the United States has been afforded more than ample opportunity to make their views known to the Court. It is evident that no investigations or prosecution will be conducted in the United States into the acts contained in the complaint. Rather, a culture of impunity exists in the United States. Without accountability, not only will the authors of the "torture program" profit from (rather than be punished by) confessing their acts, but the acts will likely be repeated.
The other officials named in the complaint are David Addington, former counsel to, and chief of staff for, former vice president Dick Cheney, Douglas Feith, former under secretary of defense for policy, former attorney general Alberto Gonzales and former Defense Department general counsel William Haynes.

In February, the US Department of Justice (DOJ) [official website] overruled [JURIST report] the findings of a report [text, PDF] concluding that Bybee and Yoo committed professional misconduct when they wrote the memos. Instead, the DOJ said that they were only guilty of "poor judgment" in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) [official website] concluded that Yoo had committed "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." The report also found that Bybee had committed professional misconduct when he acted in "reckless disregard" of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [text, PDF] overruling the OPR's report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.




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Alaska judge upholds parental notification abortion law
Jaclyn Belczyk on December 14, 2010 12:24 PM ET

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[JURIST] An Alaskan Superior Court judge on Monday refused to block a law requiring parental notification for women under the age of 18 to have an abortion [JURIST news archive], allowing the law to take effect Tuesday. The law was approved by voters in August but was challenged [complant, PDF] by Planned Parenthood of the Great Northwest [advocacy website]. Judge John Suddock declined to enjoin the law [AP report] but did make several changes. Suddock struck provisions allowing fines and imprisonment for those who violate the law and allowing doctors to be held liable for damages. Planned Parenthood plans to appeal the ruling.

In 2007, the Alaska Supreme Court ruled [JURIST report] that a state law requiring parental consent before teens under the age of 17 can have an abortion, violates the teens' constitutional right to privacy. The court suggested, however, that a law simply requiring parental notification without consent would probably be valid. More than 30 states require some type of parental involvement before minors can have an abortion—either notification or consent. In March, an Illinois Cook County Circuit Court [official website] judge ruled [JURIST report] that the Parental Notice of Abortion Act of 1995 [text] is constitutional.




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UN rights expert urges release of Myanmar political prisoners
Maureen Cosgrove on December 14, 2010 9:58 AM ET

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[JURIST] A UN Human Rights Council (UNHRC) [official website] expert on Monday urged Myanmar's military government to release 2,202 political prisoners [statement]. Tomas Ojea Quintana [official profile; JURIST news archive], a UN Special Rapporteur, called for the release of the "prisoners of conscience," many of whom, according to Quintana, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy:
As Myanmar attempts to move forward in its democratic transition and the new Government seeks to establish a new era of peace and prosperity for the people, it is critical that prisoners of conscience be released immediately and unconditionally. These are individuals who were imprisoned for exercising their basic human rights, the freedom of expression and freedom of assembly.
The prisoners, most of whom were arrested for peaceful activism, should be released until the government revises national laws to align with international law, Quintana said. Prior to the national elections on November 7, the Myanmar government indicated that it would consider releasing [UN report, PDF] some of the prisoners of conscience, but no prisoners have been released at this time.

Last month, Myanmar's government released pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive], ending her almost eight years under house arrest. UN Secretary-General Ban Ki-moon [official website] hailed her release and encouraged the country to release all political prisoners [press release]. Suu Kyi's 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 country'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. Amnesty International (AI) [advocacy website] in September urged [press release; JURIST report] Myanmar's government to release all political prisoners ahead of the nation's November elections.




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EU to sanction Ivory Coast over non-compliance with election results
Sarah Paulsworth on December 13, 2010 2:29 PM ET

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[JURIST] The Council of the EU [official website] adopted a decision Monday to institute sanctions [official statement, PDF] against the Ivory Coast. There has been unrest in the country [JURIST report] since elections were held at the beginning of this month. Alassane Ouattara defeated incumbent Laurent Gbagbo, but Gbagbo has refused to concede victory [AP report] to Ouattrara. According to the EU's statement:
The Council has considered how to react to the situation in Cote d'Ivoire. It has decided to adopt without delay targeted restrictive measures against those who are obstructing the process of peace and national reconciliation, and in particular who are jeopardising the proper outcome of the electoral process. Those measures will include a visa ban and an assets freeze. They will particularly target those leading figures who have refused to place themselves under the authority of the democratically elected President, of whom an initial list should be adopted rapidly.
The UN certified [UN News Centre report] Ouattrara's victory, but both he and Gbagbo have taken oaths of office. Approximately $340 million in aid from the EU could also be withheld [AP report] if Gbagbo does not concede victory to Ouattrara.

In February, Gbagbo dissolved [JURIST report] the country's parliament and electoral commission based on allegations of voter fraud in the long delayed presidential elections. On disbanding the government, Gbagbo charged Prime Minister Guillaume Soro [BBC profile] with creation of new government and new election format. Gbagbo had accused Beugre Mambe, the head of the independent electoral commission, of fraud by attempting to register more than 400,000 whom Gbagbo considers to be foreigners. Opposition parties such as the Ivory Coast Democratic Party (PDCI) [party website, in French] and Republican Gathering Party (RDR) [party website, in French] said that most of those voters are ethnic groups in the north of the country, who would likely have voted against Gbagbo. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office through delaying six successive elections.




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Federal judge rules health insurance mandate unconstitutional
Sarah Paulsworth on December 13, 2010 1:35 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] ruled [opinion, PDF] Monday that the minimum coverage provision of the recently enacted health care reform law [HR 3590 text; JURIST news archive] is unconstitutional. Judge Henry Hudson, who had previously denied a motion to dismiss the lawsuit [JURIST report], found that an individual's decision to purchase health insurance is beyond the reach of Congress and outside the purview of the Commerce, Necessary and Proper, General Welfare and Taxation powers enumerated in the US Constitution [text]:
A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers. At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate.
Hudson left the rest of the law intact, determining that the minimum coverage provision is severable. Hudson also refused to issue injunctive relief, stating that "the award of declaratory judgment is sufficient to stay the hand of the executive branch pending an appeal." It is anticipated that this challenge will go all the way to the Supreme Court.

Monday's ruling marks the first time a court has struck down part of the health care despite numerous legal challenges. Last week, a judge for the US District Court for the District of New Jersey [official website] granted a motion to dismiss [JURIST report] a lawsuit [case materials] brought by a physician organization challenging the law. Earlier in December, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a health care challenge filed by Liberty University [academic website]. In October, a judge for the US District Court for the Northern District of Florida [official website] 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 [complaint, PDF], filed in March and joined by 20 states [JURIST reports] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], 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. A week earlier, a federal judge in Michigan ruled [JURIST report] that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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Madoff trustee files nearly 60 lawsuits to recover money for victims
Megan McKee on December 13, 2010 11:14 AM ET

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[JURIST] Irving Picard, the trustee charged with recovering money for the victims of the Bernard Madoff [JURIST news archive] scandal, has filed close to 60 lawsuits in the past three weeks attempting to recover more than $40 billion from numerous banks, hedge funds and individuals. The influx of litigation [FT report] coincided with the Saturday deadline for seeking compensation. Picard has spent two years investigating, and the various resulting lawsuits have culminated in more than 1,100 subpoenas. The suits implicate institutions such as HSBC, JPMorgan, UBS and Citigroup [corporate websites], either for enabling the Ponzi scheme or their failure to recognize it. UniCredit [corporate website] and Sonja Kohn face the largest lawsuits, and are accused of participating in the scheme. Although Picard's deadline has passed, the US attorney in Manhattan Preet Bharara still has three more years to file criminal charges or a civil forfeiture claim. The institutions and individuals sued by Picard continue to deny the allegations.

Last November, former outside accountant for Madoff, David Friehling [case materials], pleaded guilty [plea agreement, PDF; JURIST report] to fraud charges in the US District Court for the Southern District of New York [official website]. Despite his guilty plea, Friehling did not admit knowledge of Madoff's Ponzi scheme. Friehling, who was charged [complaint, PDF; JURIST report] in March, pleaded guilty on nine counts, including securities fraud, investment adviser fraud, making false filings with the Securities and Exchange Commission (SEC) [official website] and obstructing or impeding the enforcement of internal revenue laws. Friehling also agreed to forfeit $3,183,000 in addition to other property obtained through his services to Madoff and promised to cooperate in the government's investigation surrounding the Madoff scandal. Also last year, Madoff's former financial chief Frank DiPascali pleaded guilty [JURIST report] for his role in Madoff's scheme. In June 2009, Madoff was sentenced to 150 years in prison [JURIST report]. Madoff pleaded guilty to 11 charges of fraud in March 2009 after agreeing to a partial judgment from the SEC [JURIST reports] for civil charges stemming from his role in defrauding investors.




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Supreme Court splits on copyright protections for imported goods
Jaclyn Belczyk on December 13, 2010 10:52 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday divided 4-4 [opinion, PDF] in Costco Wholesale Corp v. Omega, SA [Cornell LII backgrounder; JURIST report] on the issue of copyright protections for imported goods. The case presented the question of 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 ruled [opinion, PDF; JURIST report] that the first-sale doctrine does not apply to imported goods. The 4-4 split, with Justice Elena Kagan recused, means that the Ninth Circuit's decision is affirmed, but that the ruling does not set precedent.

Also Monday, the court ruled [order list, PDF] that federal courts lack jurisdiction to hear a challenge to the size of the US House of Representatives [official website]. The court vacated a ruling by the US District Court for the Northern District of Mississippi [official website] and remanded with orders to dismiss the lawsuit for lack of jurisdiction.




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Malaysia opposition leader files complaint over WikiLeaks sodomy cable
Megan McKee on December 13, 2010 10:05 AM ET

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[JURIST] Malaysian opposition leader Anwar Ibrahim [BBC profile; JURIST news archive] on Monday filed a complaint in a Malaysian court over a WikiLeaks [website] cable published by Australian newspapers stating he had engaged in sodomy. The leaked US diplomatic cable claimed Australia's Office of National Assessments [official website] had concluded, in agreement with Singapore's Intelligence Agency, that the sodomy charges against Ibrahim were the result of a set-up, but that he was in fact guilty of committing the acts [Malaysian Star report] for which he has been indicted. Anwar is charged with sodomizing his former aide Mohamad Saiful Bukhari Azlan in 2008, and the trial is currently ongoing. His lawyers have called for the Malaysian media sources that have published the claims to be charged with contempt and say the reports are based on hearsay and cannot be trusted. Anwar has continued to describe the charges as a farce aimed at preventing him from taking his seat in parliament following the gains made by his party in the 2008 elections.

Last month, the Federal Court of Malaysia [official website], the country's highest court, rejected a defamation suit [JURIST report] filed by Anwar 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. In September, the Malaysian Court of Appeals [official website] dismissed Anwar's appeal of the Kuala Lumpur High Court's refusal to throw out the sodomy charges [JURIST reports] against him based on allegations that his accuser had an affair with the prosecutor. A three-man panel ruled that, under Section 3 of the Court of Judicature Act (CJA) [materials, text], the appeals court had no jurisdiction to hear the appeal because the High Court's ruling was not a final decision. Counsel for Anwar was to appeal to Malaysia's highest court, which will further delay his trial [JURIST report]. This was his second attempt to have the sodomy charge against him dismissed [JURIST report].




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Federal judge dismisses Microsoft co-founder's patent suit
Jaclyn Belczyk on December 13, 2010 9:15 AM ET

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[JURIST] A judge for the US District Court for the Western District of Washington [official website] on Friday dismissed [order, PDF] a patent infringement lawsuit [JURIST report] by Microsoft co-founder Paul Allen against Apple, eBay, Google [corporate websites] and eight other corporations. According to the complaint [text, PDF], which also named AOL, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube [corporate websites], the companies misappropriated technologies patented by Allen's now defunct Interval Research Corporation and currently held by Interval Licensing, LLC. The suit charged that the 11 defendants infringed on a patent that recommends like content to users based on real-time viewing data, while all but Facebook violated another that amalgamates and analyzes audio, video and text data [USPTO materials] to perform a similar function. It further alleged that AOL, Apple, Google and Yahoo violated two additional patents, 6,034,652 and 6,788,314 [USPTO materials], that identify advertisements, news and videos to display "in a way that occupies [a user's] peripheral attention." Judge Marsha Pechman dismissed Allen's claims, finding that "Plaintiff has failed to identify the infringing products or devices with any specificity." A spokesperson said Allen plans to file an amended complaint [Reuters report]

Allen's suit comes as several of the named defendants face unrelated litigation alleging misappropriation of intellectual property. Connecticut company XPRT Ventures LLC sued [JURIST report] eBay in July claiming the infringement of six patents for online auctions and payment systems. In April, a federal appeals court found that eBay is not required to actively monitor its website [JURIST report] for the sale of counterfeit goods. The ruling came shortly after a French court ordered [JURIST report] the company to pay LVMH Moet Hennessy Louis Vuitton (LVMH) [official website] damages for paying search engines to direct consumers to counterfeit LVMH products. LVMH previously secured a $63 million judgment [JURIST report] in 2008 for failing to prevent the sale of counterfeit luxury goods that infringed on registered designs. Patent holding company NTP filed suit [JURIST report] in July against Apple and Google, among other smart phone makers, related to the use of e-mail systems utilizing technology patented by NTP. The US International Trade Commission (ITC) [official website] launched an investigation [JURIST report] in June into allegations by HTC Corp [corporate website] accusing Apple of patent infringement on certain portable electronic devices. In October 2009, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that the company infringed 10 of its patents since the first iPhone was released in 2007. The patents cover wireless data transmission, speech coding and security/encryption.




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Ninth Circuit reinstates suit by Armenian genocide victims
Zach Zagger on December 12, 2010 2:09 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday reversed [opinion, PDF] its prior decision and allowed a suit by the heirs of victims of the Armenian genocide [BBC backgrounder; JURIST news archive] to proceed. The court decided 2-1 to withdraw its August ruling [JURIST report], which found California Civil Procedure Code § 354.4 [text] unconstitutional because it interfered with foreign relations by recognizing the World War I-era killings of more than one million Armenians by Turkish soldiers as a genocide. The court rejected arguments that the US has an official policy of not recognizing the killings as a genocide. The court pointed to Congress recognizing a day of remembrance for the incident and statements by the executive branch that have described the incident as genocide. The lawsuit was brought by a California citizen of Armenian descent who initiated a class action suit against insurance companies, alleging they had failed to pay benefits. Most historians recognize [San Francisco Chronicle report] the incident as a genocide, but Turkey has urged the US not to do so.

The Armenian genocide remains a contentious issue in US law and politics. In August, a panel of the US Court of Appeals for the First Circuit [official website] unanimously dismissed a lawsuit [JURIST report] challenging the exclusion of materials questioning the Armenian genocide from a school curriculum. In March, the Obama administration announced its opposition to a resolution [JURIST report] labeling the World War I-era killings as genocide. The announcement came after the US House of Representatives Committee on Foreign Affairs passed the resolution [JURIST report] by a vote of 23-22. Turkish Prime Minister Recep Teyyip Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US.




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Sudan civil society group challenges southern referendum
Dwyer Arce on December 12, 2010 12:03 PM ET

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[JURIST] A Sudanese civil society group filed a lawsuit Sunday challenging the actions of the commission handling the January 9 self-determination referendum in southern Sudan. The challenge, filed with the Sudanese Constitutional Court, alleges that the commission violated the procedures [Reuters report] for the referendum, set out in the 2009 Southern Sudan Referendum Act [text, PDF] and the Sudanese Constitution [text, PDF], in conducting voter registration and in failing to hold to the timetable set out for the vote. The Society Organization Network also accused the commission of placing members of the Sudan People's Liberation Movement (SPLM) [party website], a pro-secession party, in senior posts and preventing voters in the north from registering to vote. Members of the SPLM described the lawsuit as sabotage [Xinhua report] by the National Congress Party (NCP), the dominant political party of the north. In September, a human rights expert told the UN that Sudan is not prepared for the referendum [JURIST report]. Mohamed Chande Othman, a Tanzanian judge and independent expert on the Sudan human rights situation, presented a report [text, PDF] to the UN Human Rights Council [official website] warning that Sudan does not have the necessary infrastructure in place for the January referendum. The report cites major setbacks, including the suppression of free speech and of the press, restrictions on other civil and political rights, and inadequate protection of society due to a lack of well-trained police officers, prosecutors and judges.

The referendum is meant to be the culmination of the 2005 Comprehensive Peace Agreement (CPA) [UN press release] that ended two decades of civil war. Also in September, the UN Security Council issued a statement [text] calling on the CPA parties to take "urgent action to facilitate peaceful and on-time referenda that reflect the will of the Sudanese people, to respect their results, and to resolve key remaining post-referenda issues." In April, Sudan attempted to have its first democratic multi-party election in almost a quarter of a century, but it was fraught with controversy. Two political parties in eastern Sudan accused the ruling NCP [JURIST report] of using voter fraud and intimidation in gaining electoral victories in their region of the country during the national elections.




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Serbia court acquits 10 accused of aiding war crimes suspect Mladic
Dwyer Arce on December 12, 2010 11:17 AM ET

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[JURIST] The First Municipal Court in Belgrade [official website, in Serbian] on Friday acquitted 10 men suspected of helping former Bosnian Serb military leader Ratko Mladic [case materials; JURIST news archive] evade arrest. Mladic is one of two high-level targets still at large under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] and faces charges of genocide and crimes against humanity for allegedly overseeing the Srebrenica massacre and other war crimes violations during the Bosnian civil war [JURIST news archives]. The men were charged with helping Mladic by renting apartments in Belgrade for him in 2002. Judge Dragan Garic held that some of the charges were barred by the statute of limitations [Press Online report, in Croatian], which had expired in 2008 and 2009. For the remaining charges, Garic held that there was not enough evidence to warrant a conviction. Prosecutors have announced that they will appeal [PTC report, in Croatian] the ruling to the Court of Appeal in Belgrade [official website, in Serbian].

In September, ICTY prosecutor Serge Brammertz [official profile] called on Serbia and other governments [JURIST report] to increase efforts to find and arrest Mladic. Brammertz said failure to arrest Mladic would send war criminals the message that if they avoid capture long enough, the world will cease to care about bringing them to justice. Brammertz also emphasized the importance of seeking justice for Mladic's victims. Authorities must work quickly to arrest Mladic, Brammertz noted, since the ICTY is scheduled to be shut down in three years. In May, Mladic's family filed a claim in the Belgrade District Court seeking to have him declared officially dead [JURIST report] in order to collect his state pension and sell his property. Earlier that month, the ICTY announced that the Office of the Prosecutor filed a motion to amend the indictment against Mladic [JURIST report] to include 11 counts of genocide, crimes against humanity and violations of the laws and customs of war in order to help speed up court proceedings once Mladic is captured.




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Top Croatia official arrested for war crimes
Carrie Schimizzi on December 11, 2010 1:12 PM ET

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[JURIST] Croatian police on Friday arrested a former senior member of the nation's ruling party for alleged war crimes he committed against Serbian civilians in 1991 during the Serbo-Croatian war [GlobalSecurity backgrounder]. The arrest of former interior ministry official Tomislav Mercep comes just one day after Amnesty International (AI) [advocacy website] released a report [text, PDF; press release] criticizing Croatia's lack of political will, adequate laws and court system necessary to prosecute alleged war crimes. The report, "Behind a Wall of Silence: Prosecution of War Crimes in Croatia" called on the Croatian government to increase the rate at which war crimes trials are adjudicated in order to provide justice for victims and their families. The report also called for the prosecution of several top-level Croatian officials, including Mercep who has been accused over the past 15 years of ordering military units to kill and torture Serbian citizens during the Serbo-Croatian conflict. The previous allegations had never been fully investigated by any Croatian authority despite what AI called "publicly available evidence" against him. Nicola Duckworth, Europe and Central Asia Programme Director at AI, praised the arrest [press release] calling it a "welcome development."

Also on Friday, former Croatian prime minister Ivo Sanader was arrested [JURIST report] in Austria pursuant to an arrest warrant issued by Croatia. Sanader, who was elected to parliament after he stepped down from the prime minister position in 2009, stands accused of corruption, abuse of power and fraud for taking nearly €4 million from public firms and state institutions [Croatian Times report]. Croatian officials have been under serious pressure to the tackle the issue of corruption in order to gain accession [EU materials] to the EU by 2012. The prosecution of individuals for organized crime and war crimes has been one of the major issues faced by Croatia in its accession process. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia [JURIST news archive] investigating war crimes in the area.




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Germany court rejects El-Masri CIA rendition suit
Carrie Schimizzi on December 11, 2010 12:18 PM ET

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[JURIST] A German administrative court dismissed [press release, in German] a lawsuit filed by Khaled El-Masri [JURIST news archive] seeking the arrest and extradition of 13 Central Intelligence Agency (CIA) [official website] agents whom El-Masri claims kidnapped and illegally detained him in 2003 as part of the Bush administration's extraordinary rendition [JURIST news archive] program, according to a ruling made public Friday. The Cologne Administrative Court [official website, in German] ruled Tuesday that the German Justice Ministry's decision not to pursue prosecution against the CIA agents, despite a previously issued [JURIST reports] arrest warrant, was legal. On orders from the US, in 2003, Macedonian authorities seized [Guardian report] 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. The German government decided against pursuing El-Masri's claims in 2007 after officials in Washington, DC, stated they would reject any attempts at extradition due to national security issues. El-Masri is currently serving a two-year prison sentence for an unrelated crime he committed in 2009, and has one month to decide whether to file an appeal [AP report].

In October, the European Court of Human Rights (ECHR) [official website] announced [JURIST report] that it will review the involvement [press release] of the Former Yugoslav Republic of Macedonia (FYROM) in the extraordinary rendition and torture of El-Masri by the CIA. The case against the FYROM is the first in which a government has been called before an international tribunal to explain its involvement in the CIA's extraordinary rendition program. In May, a lawyer from the Spanish National Court Office of the Prosecutor petitioned [JURIST report] judge Ismael Moreno to issue arrest warrants for the 13 CIA agents who allegedly kidnapped El-Masri. The Office of the Prosecutor alleged that the court had 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. In 2008, El-Masri petitioned [ACLU materials; JURIST report] the Inter-American Commission on Human Rights (IACHR) [official website] to open an investigation of human rights violations by the US, alleging that he was tortured by the CIA. In 2007, the US Supreme Court rejected [JURIST report] without comment El-Masri's petition for certiorari, ostensibly supporting the Bush administration's contention that allowing El-Masri's federal lawsuit to proceed would require the revelation of state secrets.




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Croatia ex-PM arrested on suspicion of corruption, fraud
Brian Jackson on December 11, 2010 11:03 AM ET

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[JURIST] Former Croatian prime minister Ivo Sanader was arrested in Austria on Friday pursuant to an arrest warrant issued by Croatia. Sanader, who was elected to parliament after he stepped down from the prime minister position in 2009, stands accused of corruption, abuse of power and fraud for taking nearly €4 million from public firms and state institutions [Croatian Times report]. Those charges were filed against the former official after the Croatian parliament voted to rescind his immunity from prosecution [AFP report], to which he was entitled as a member of parliament. Sanader had left Croatia immediately before that vote [BBC report], leading to speculation that he was fleeing from possible prosecution. An Austrian judge has ordered that Sanader be held for two weeks in Austria pending his extradition to Croatia.

Croatian officials have been under serious pressure to the tackle the issue of corruption in order to gain accession [EU materials] to the EU by 2012. The prosecution of individuals for organized crime and war crimes has been one of the major issues faced by Croatia in its accession process. In 2008, Amnesty International called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia [JURIST news archive] investigating war crimes in the area.




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Supreme Court to hear 3 cases involving labeling of generic medicines
Brian Jackson on December 11, 2010 10:06 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Friday granted certiorari [order, PDF] in three cases related to the duty of generic drug manufacturers to list possible side effects on the labels of medicines they produce. The three cases, PLIVA Inc. v. Mensing [docket; cert. petition, PDF], Actavis v. Mensing [docket; cert. petition, PDF] and Actavis v. Demahy [docket; cert. petition, PDF] were consolidated and will receive one hour of oral argument time. In each of the three cases, the drug manufacturers sought review after appellate courts ruled that the plaintiffs' cases could move forward and that federal law did not preempt their state law claims. Both plaintiffs suffered a neurologic side effect, tardive dyskinesia [NIH backgrounder], from their use of the generic drug metoclopramide to treat gastric reflux.

These consolidated cases will answer a question that the Supreme Court left open when it decided Wyeth v. Levine [JURIST report] in 2009—namely, is state law preempted in drug labeling cases when the drug is a generic, rather than name-brand medication. In the Wyeth decision, the court held that manufacturers of name-brand medicines bear primary responsibility for product labeling, and that the silence of the Food, Drug, and Cosmetic Act [text] on the issue of preemption was sufficient proof that Congress did not contemplate preemption in medication labeling. The court stated that manufacturers may themselves initiate strengthened warning labels to comply with state and federal requirements. The court's decision in Wyeth upheld a Vermont Supreme Court's affirmance of a $6.7 million jury award for the plaintiff.




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Massachusetts high court authorizes DNA warrants for unknown suspects
Jaclyn Belczyk on December 10, 2010 3:57 PM ET

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[JURIST] The Massachusetts Supreme Judicial Court [official website] ruled Thursday that prosecutors can indict a genetic profile in a rape case, even if they do not know the suspect's name. The ruling will allow prosecutors to indict suspects based on a DNA profile so that once the suspect is identified the prosecution will not be barred by the statute of limitations. The ruling came in the case of Jerry Dixon, whose DNA profile was indicted in 2006 to toll the 15-year statute of limitations on rapes that had occurred in 1991. Dixon was identified in 2007 after being required to submit a DNA sample when he was convicted on separate motor vehicle charges. His lawyer argued that allowing prosecutors to indict a genetic profile provides no notice to the person being charged. The court rejected that argument, finding:
We have not previously held that the constitutional requirement of notice inside the statute of limitations period must be given at any particular point following the return of an indictment. ... Indeed, our long-standing rules of criminal procedure counsel otherwise, and we have never perceived any conflict with art. 12. ... Moreover, while we have concluded that generic John Doe indictments are not permitted by art. 12, the Legislature has expressly vested in the Commonwealth the authority to indict by "a fictitious name or by any other practicable description." ... Such authority, we have said, "is salutary, to the end that, in so far as art. 12 of the [Massachusetts Declaration of Rights] permits, one who ought to be indicted is prevented from hampering the grand jury in the performance of their duty by screening his name and other identifying characteristics." ... The Commonwealth routinely perfects its constitutionally required notice to the defendant, as required by art. 12, after the issuance date of indictment. It logically follows that where the Commonwealth secures an otherwise valid and timely indictment, but inserts the defendant's proper name in the record outside the relevant limitation period, there is no constitutional or statutory infirmity.
Dixon is currently awaiting trial on the rape charges.

In January, the Supreme Court of California also upheld [JURIST report] the use of "John Doe" arrest warrants based on DNA profiles. In May, a federal court upheld the constitutionality [JURIST report] of mandatory DNA collection for all persons arrested or detained under federal authority. Judge Gregory Hollows of the US District Court for the Eastern District of California [official website] found that although the collection of DNA from those arrested on federal felony, sexual abuse, or violent crime charges does constitute a "search" within the meaning of the Fourth Amendment, a person arrested based on probable cause "has a diminished expectation of privacy in his own identity." Federal agencies began collecting DNA samples [JURIST report] in 2008, although they had been authorized to do so since 2006.




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China dissident Liu Xiaobo awarded Nobel Peace Prize in absentia
Dwyer Arce on December 10, 2010 3:30 PM ET

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[JURIST] Chinese human rights activist Liu Xiaobo [BBC profile; JURIST news archive] was awarded the 2010 Nobel Peace Prize in absentia Friday in Oslo, Norway. The prize was laid in an empty chair following the ceremony. It would normally be presented to either the recipient or a close relative, as has been the case with other laureates who were being held in detention at the time, such as Myanmar's Aung San Suu Kyi [JURIST news archive], who was the winner in 1991. Liu is currently serving an 11-year prison term [JURIST report], and Chinese authorities did not allow Liu's family to attend the ceremony. Presenting the award, Nobel committee chairman Torbjorn Jagland explained [statement] that Liu was chosen because of his "long and non-violent struggle for fundamental human rights in China." Jagland continued:
There are many dissidents in China, and their opinions differ on many points. The severe punishment imposed on Liu made him more than a central spokesman for human rights. Practically overnight, he became the very symbol, both in China and internationally, of the struggle for such rights in China. ... China's own constitution upholds fundamental human rights. Article 35 of the country's constitution thus lays down that "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration." Article 41 begins by stating that citizens "have the right to criticise and make suggestions regarding any state organ or functionary." Liu has exercised his civil rights. He has done nothing wrong. He must therefore be released.
Also on Friday, Xinhua [media website], the official press agency of China, published articles criticizing the award and the Nobel committee, one of which leveled the criticism [Xinhua report] that "the 2009 and 2010 peace prize winners reflect the partisanship of the Nobel Committee—it cheers politicians from the West and opposes leaders from the East. It praises the United States and blames China." and "does not consider the difference in situations in different countries and different parts of the world" when choosing award recipients. Another commentator cited Liu's status as a "convicted criminal" [Xinhua report], and the bias of the Nobel committee as reasons to disregard the award.

The Nobel committee announced Xiaobo as the recipient of the 2010 Nobel Peace Prize [JURIST report] in October. Liu has been one of China's most prominent dissidents. He spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule and co-authored Charter 08 [text], a petition calling for political reforms in the country. He is currently serving an 11-year prison sentence in China for inciting subversion. US President Barack Obama, the 2009 award recipient, praised the Nobel Committee's decision and called on China to release Liu. Chinese Ministry of Foreign Affairs [official website, in Chinese] spokesperson Jiang Yu denounced the decision [press release, in Chinese], calling it "contrary to the purpose of the Nobel Prize." Chinese authorities have censored the announcement, blocking internet searches and international broadcasts about it and even turning off phones of people who text messaged the news.




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UN rights chief criticizes actions against WikiLeaks
Dwyer Arce on December 10, 2010 2:15 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday criticized actions by governments and corporations to cut off funding to WikiLeaks [website; JURIST news archive], saying it could violate the website's rights to free expression. The comments come following efforts from the US government and US-based companies to cut ties with the controversial website, responsible for leaking more than 250,000 classified diplomatic documents [NYT backgrounder] last month and 90,000 related to the Afghan war [JURIST report] in July. After releasing the documents last month, Mastercard, Visa, Amazon.com, PayPal and EveryDNS have ended involvement with WikiLeaks [AP report], jeopardizing its ability to raise funds and continue operations. In turn, these companies have been subject to retaliatory cyber attacks, in which WikiLeaks has denied involvement. Pillay, who described the exchange as a cyber war, went on to call for an end to these attacks and actions by governments against WikiLeaks taken through third party companies, instead calling for out right prosecution [Reuters report] if illegal acts have been committed. Also Thursday, US Senators Joseph Lieberman (I-CT) and Susan Collins (R-ME) [official websites] praised the actions of these corporations [press release], describing them as "good corporate citizens."
Companies that are cutting off their services to Wikileaks ... are doing the right thing as good corporate citizens and deserve the support of the American people. The Wikileaks data dump has jeopardized U.S. national interests and the lives of intelligence sources around the world. This is no time for business as usual. While corporate entities make decisions based on their obligations to their shareholders, sometimes full consideration of those obligations requires them to act as responsible citizens. We offer our admiration and support to those companies exhibiting courage and patriotism as they face down intimidation from hackers sympathetic to Wikileaks' philosophy of irresponsible information dumps for the sake of damaging global relationships.
On Tuesday, US Representative Pete King (R-NY) [official website] introduced the Securing Human Intelligence and Enforcing Lawful Dissemination Act (SHIELD) [HR 6506 text], which would allow the prosecution of the disclosure of classified information related to intelligence activities. Lieberman introduced similar legislation in the Senate last week.

Shortly after WikiLeaks' release of the classified documents, US Attorney General Eric Holder told reporters that the Department of Justice (DOJ) and the Department of Defense (DOD) were conducting a criminal investigation [JURIST report] of WikiLeaks for the release. Holder condemned WikiLeaks' recent release of government cables, saying that it threatens US national security, 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." The day before, 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.




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ICC prosecutor accuses Sudan of blocking genocide inquiry
Jaclyn Belczyk on December 10, 2010 12:44 PM ET

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[JURIST] Chief prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] told the UN Security Council [official website] Thursday that Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] is deliberately protecting those accused of committing genocide in Darfur [BBC backgrounder; JURIST news archive]. Moreno-Ocampo said that violence has been ongoing and that hundreds of civilians have been killed [NYT report] and thousands displaced over the past six months. The prosecutor accused al-Bashir of ordering attacks on civilians and protecting those following his orders. Al-Bashir has been charged with genocide and crimes against humanity [JURIST reports], but has thus far avoided arrest.

Several African countries that are state parties to the ICC's Rome Statute [materials] have come under fire for allowing al-Bashir to attend events in their countries without arrest. Last week, the ICC asked the Central African Republic to take steps to arrest al-Bashir and transfer him to the court if he should enter the country for its independence celebrations. In August, Kenya welcomed al-Bashir to a celebration for the country's adoption of a new constitution [JURIST report]. The ICC reported Kenya [JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute as a result of the country's failure to arrest al-Bashir. Former UN secretary-general Kofi Annan [official profile; JURIST news archive] urged Kenya to reaffirm its commitment to the ICC [JURIST report]. The ICC also reported Chad [decision, PDF] for failing to arrest al-Bashir when he visited the country in July.




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Italy court convicts former Parmalat owner over fraudulent bankruptcy
Megan McKee on December 10, 2010 10:24 AM ET

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[JURIST] A court in the Italian town of Parma on Thursday convicted the founder and former chief executive of dairy giant Parmalat SpA [corporate website; JURIST news archive], Calisto Tanzi [NNDB profile], for the company's fraudulent bankruptcy, sentencing him to 18 years. The court said that Tanzi and the 14 former executives sentenced with him will have to reimburse the company [AFP report], two billion euros. The executives must also compensate 30,000 defrauded investors around 30 million euros. Tanzi is expected to appeal the verdict, and the defense has blamed the banks that sold Parmalat bonds even when they knew that the group was insolvent. A trail examining the responsibility of Citigroup, Deutsche Bank, Morgan Stanley and Bank of America (BOA) [corporate websites] is currently underway in Milan.

Last July, BOA announced that it reached a settlement [JURIST report] with Parmalat in litigation stemming from its 2003 collapse. Under the terms of the settlement, BOA will pay Pamalat USD $100 million, which includes both cash and non-cash components. The settlement resolves a $10 million lawsuit filed by Parmalat against BOA in 2004 and a counterclaim [JURIST reports] filed by BOA, alleging the company engaged in fraud and is maliciously suing the bank to shift blame. The two companies filed a joint motion to stay proceedings [text, PDF], and further details of the settlement will become available once it has been filed in the US District Court for the Southern District of New York [official website]. In December 2008, an Italian court in Milan in a separate case concerning stock market manipulation sentenced [JURIST report] Tanzi to 10 years in prison for his role in the company's collapse. Tanzi was the first executive to be sentenced in connection with the 14 billion euro fraud scheme in 2003 that bankrupted the company. He was convicted of fraudulent bankruptcy and criminal association for allegedly concealing the company's debt. Tanzi was indicted [JURIST report] along with approximately 20 other executives in July 2007. Parmalat filed for insolvency in December 2003 after discovering accounting discrepancies totaling nearly $5 billion in debt.




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France ex-president Chirac to face single corruption trial
Megan McKee on December 10, 2010 9:58 AM ET

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[JURIST] A French court decided Thursday to combine two separate cases involving misuse of public funds brought against former president Jacques Chirac [official profile, in French; JURIST news archive], leaving him to face only one trial this spring. It is said that France's Court of Cassation [official website, in French] ordered the Paris court to consolidate the two cases [Fance 24 report] into one trial. Chirac is accused of financing the Rally for the Republic (RPR), now renamed the Union for a Popular Movement [party website, in French], while mayor of Paris by illegally establishing fake city positions for party members to collect salaries totaling several million dollars. In the other case, he is charged with illegal conflict of interest concerning jobs for people in his conservative party. Chirac has denied any foul play. His trial is set to begin March 7, and, if convicted, Chirac faces up to 10 years in prison and fines that could exceed USD $200,000.

In September, the Paris city council voted to accept a deal in which Chirac will pay the city USD $741,000 in compensation for money he allegedly paid to supporters for whom he created false jobs. In exchange for the compensation, the city agreed to drop out of a corruption suit [JURIST report] against Chirac. Chirac said the payment was not an admission of guilt. Last December, a French judge placed Chirac under preliminary investigation [JURIST report]. 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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Senate blocks vote to repeal 'Don't Ask Don't Tell'
Jaclyn Belczyk on December 10, 2010 9:15 AM ET

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[JURIST] The US Senate [official website] failed Thursday to advance a vote on a bill to repeal the military's controversial "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive], which prohibits openly gay men and women from serving in the armed forces. The Senate fell three votes short [roll call vote] of the 60 votes necessary to approve a cloture motion on a defense spending bill [S 3454 materials] that would include a provision for repeal. After the vote, Senators Joseph Lieberman (I-CT) and Susan Collins (R-ME) [official websites] said they plan to introduce a separate piece of legislation [press release] to repeal the ban, but it appears unlikely that such a bill could pass before the end of the current legislative session. President Barack Obama [official website] expressed disappointment with the vote and called on Congress to continue to work toward repealing the ban. The Senate previously failed [JURIST report] to invoke cloture to repeal DADT in September.

The Obama administration has been pushing Congress to repeal DADT as courts have also been weighing in on the issue. Last week, the Senate Armed Services Committee (SASC) [official website] heard conflicting testimony [JURIST report] from top military leaders on the services' readiness to repeal DADT. The hearing was held to review a Department of Defense (DOD) [official website] report [text, PDF; JURIST report], released earlier that week, which concluded that repealing DADT would only minimally effect military effectiveness, soldier retention and family readiness. Last month, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. Also in November, Defense Secretary Robert Gates called on the 112th Congress to repeal DADT [JURIST report]. Gates issued a memorandum in October limiting the authority to discharge openly gay service members [JURIST report] to five senior DOD officials. The policy was struck down by a federal court in September, but an appeals court has since stayed that ruling [JURIST reports]. 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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Virgina Tech unlawfully failed to notify students of shooting: report
Jaclyn Belczyk on December 9, 2010 3:48 PM ET

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[JURIST] Officials at Virginia Tech [university website] acted unlawfully by waiting too long to notify students during the 2007 shootings [NYT backgrounder; JURIST news archive], according to a report [text, PDF; materials] released Thursday by the US Department of Education [official website]. According to the report, Virginia Tech officials failed to comply with the Clery Act [20 USC § 1092(f) text], which requires universities to disclose crime statistics and communication information about campus safety. The report found:
Virgina Tech failed to comply with the requirements relating to a timely warning ... in response to the shootings on campus on April 16, 2007. There are two aspects to this violation. First, the warnings that were issued by the University were not prepared or disseminated in a manner to give clear and timely notice of the threat to the health and safety of campus community members. Second, Virginia Tech did not follow its own policy for the issuance of timely warnings as published in its annual campus security reports.
Education Secretary Arne Duncan noted [press release], "[w]hile Virginia Tech failed to adequately warn students that day, we recognize that the University has put far-reaching changes in place since that time to help improve campus safety and better protect its students and community."

Virginia Tech has faced several lawsuits over the shooting incident. Last month, a Virginia circuit court judge ruled that a lawsuit by two families whose children were killed in shooting can proceed against school administrators, despite their claims of sovereign immunity. 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 two families who opted out of an $11 million dollar settlement [JURIST report] to which 24 of the 32 victims' families agreed in June 2008. The settlement 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 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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Thailand court dismisses second case against ruling party
Jaclyn Belczyk on December 9, 2010 2:26 PM ET

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[JURIST] Thailand's Constitutional Court [GlobaLex backgrounder] on Thursday dismissed a second case against the ruling Democrat Party [party website] for alleged misuse of campaign funds. The court voted 4-3 to dismiss the case [Bangkok Post report] on procedural grounds, allowing the ruling part to escape dissolution. 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. A separate suit was dismissed [JURIST report] last month, also on procedural grounds.

The Constitutional Court began hearing the first 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 ruling 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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Federal judge dismisses challenge to California affirmative action ban
LaToya Sawyer on December 9, 2010 2:15 PM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Wednesday dismissed [opinion, PDF] a challenge to California's affirmative action [JURIST news archive] ban in public university admissions. The ban, approved by voters in 1996 as Proposition 209 [text], prohibits discrimination or preferential treatment to any individual on the basis of race, sex, national origin and ethnicity in the areas of public education, public employment and public contracting. The lawsuit was filed by the Coalition to Defend Affirmative Action, By Any Means Necessary (BAMN) [advocacy website], a group that supports full integration and equality of minorities and marginalized groups into American society. BAMN and other Proposition 209 opponents argued that the ban violates the Equal Protection Clause [Cornell LII backgrounder] of the US Constitution. Plaintiffs had cited [brief, PDF] the 2003 US Supreme Court [official website] case Grutter v. Bollinger [opinion text], which upheld affirmative action at the University of Michigan Law School. In Wednesday's ruling, the judge declined to follow in Michigan's footsteps, noting that the Supreme Court only suggested using race as preference and did not require it, so California may use whatever method it desires. Plaintiffs plan to appeal.

Proposition 209 was upheld [JURIST report] by the Supreme Court of California [official website] in August. In addition to California, five states have adopted affirmative actions bans. Last month, Arizona voters [JURIST report] approved [results] Proposition 107, amending the state constitution [HCR 2019 text] to ban affirmative action programs in state government agencies. In November 2008, ballot measures banning affirmative action failed in Colorado and passed in Nebraska [JURIST reports]. In 2006, Michigan voters approved a similar state constitutional amendment, which was upheld [JURIST reports] in March 2008 by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.




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Federal judge dismisses New Jersey health care suit
Andrea Bottorff on December 9, 2010 12:55 PM ET

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[JURIST] A judge for the US District Court for the District of New Jersey [official website] on Wednesday granted a motion to dismiss a lawsuit [case materials] brought by a physician organization challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. Nonprofit New Jersey Physicians, Inc. [advocacy website] filed the complaint [text, PDF] in March, arguing that the new federal health care law goes beyond the enumerated powers allowed in the US Constitution [text] by penalizing individuals who choose not to buy health insurance and preventing doctors from receiving payments directly from patients. The group also stressed that it supports many of the health insurance coverage provisions in the new law and only opposes parts of the law they believe hurt the health care industry [press release], such as reimbursement methods. However, Judge Susan Wigenton ruled that the law does not cause the alleged harms and does not violate the Constitution. The New Jersey Physicians group intends to appeal the case [Bloomberg report] to the US Court of Appeals for the Third Circuit [official website].

The recently enacted health care reform law has faced numerous lawsuits over the last few months. Last week, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a health care lawsuit filed by Liberty University [academic website]. In October, a judge for the US District Court for the Northern District of Florida [official website] 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 [complaint, PDF], filed in March and joined by 20 states [JURIST reports] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], 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. A week earlier, a federal judge in Michigan ruled [JURIST report] that the law is constitutional under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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House approves immigration reform bill
Andrea Bottorff on December 9, 2010 11:43 AM ET

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[JURIST] The US House of Representatives [official website] on Wednesday approved a bill [legislative materials; text] that would provide a path to permanent resident status for some high school graduates who enter the military or enroll in a college degree program. The Development, Relief, and Education for Alien Minors Act, or DREAM Act, would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [text, PDF] to allow certain children of illegal immigrants an opportunity to achieve legal residency. The bill was previously defeated in Congress in 2007, but reintroduced [JURIST reports] in October by US Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) [official profiles] as part of the Comprehensive Immigration Reform Act of 2010 [legislative materials], which includes several bills that, if passed, would greatly change US immigration [JURIST news archive] law. Rights groups like the Mexican American Legal Defense and Education Fund (MALDEF) [advocacy website] have praised the vote, highlighting the need to keep young people in the country to advance ingenuity in high education and service in the military. Thomas Saenz, President and General Counsel for MALDEF, further said that the bill "vindicates longstanding national, constitutional values to embrace newcomers and to reject cross-generational punishment." The Senate was originally scheduled to vote on the bill Thursday, but the vote was canceled, which likely pushed the Senate's consideration of the bill into early next year.

Illegal immigration continues to be a concern for local governments, as the federal government has failed to pass comprehensive immigration reform legislation. Earlier this week, the US Supreme Court heard oral arguments [JURIST report] on whether an Arizona statute imposing sanctions on employers that hire illegal immigrants is preempted by federal law. Last month, the US Court of Appeals for the Ninth Circuit heard arguments on another controversial Arizona immigration law, SB 1070 [materials, JURIST news archive]. Also in November, the Nebraska Supreme Court declined to rule [JURIST report] on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants. In September, the US Court of Appeals for the Third Circuit ruled [JURIST report] 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.




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Obama signs bill funding minority farmer settlements
Jaclyn Belczyk on December 9, 2010 11:04 AM ET

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[JURIST] US President Barack Obama [official website] on Wednesday signed [press release] a bill [HR 4783 materials] authorizing funds for a settlement with minority farmers over discrimination claims. The settlements include $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. Obama said, "[w]hile I am pleased that this Act reflects important progress, much work remains to be done to address other claims of past discrimination made by women and Hispanic farmers against the Department of Agriculture as well as to address needs of tribal communities." The House of Representatives approved the settlement last week after it was approved by the September [JURIST reports] in November.

The settlements arose from two cases. Eloise Cobell [plaintiff website] 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. A settlement was reached [JURIST report] last December. 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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House approves bill preventing US trial of Guantanamo detainees
Jaclyn Belczyk on December 9, 2010 9:09 AM ET

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[JURIST] The US House of Representatives [official website] voted 212-206 [roll call vote] Wednesday in favor of a defense spending bill [HR 3082] that includes a provision preventing Guantanamo Bay [JURIST news archive] detainees from being transferred to the US for trial. The legislation would block Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and the other accused 9/11 conspirators from being tried in a US civilian court. US Attorney General Eric Holder [official website] announced last year that Mohammed would face a civilian trial, drawing intense criticism and leading the Obama administration to reconsider the decision [JURIST reports]. The bill must still be approved by the Senate. Holder sent a letter [text, PDF] Thursday to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell urging them not to include the provision in the spending bill. If passed, the ban would remain in place until September 30, the end of the current fiscal year.

In the first civilian trial of an ex-Guantanamo detainee, a federal jury convicted [JURIST report] Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] last month 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. While the Obama administration viewed the conviction and 20-year minimum sentence as a victory, opponents have cited the acquittals as evidence that civilian courts are inadequate venues for trying terror suspects. Several scholars have nevertheless maintained that federal courts are capable of serving justice [JURIST op-ed; JURIST op-ed]. Upon taking office, President Barack Obama pledged to close the detention facility at Guantanamo Bay [JURIST report] by January 2010, but he has been met with strong opposition to transferring detainees to US soil




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South Korea says Facebook not complying with data privacy laws
Megan McKee on December 8, 2010 4:23 PM ET

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[JURIST] A South Korean regulator said Wednesday that Facebook [website; JURIST news archive] is not in compliance with the nation's data privacy laws and must more earnestly seek consent from users before accessing their personal information. The Korean Communications Commission [official website] generally criticised [ITProPortal report] Facebook's privacy policy, handling of personal information and the use of personal data of third parties. In particular, Facebook is said to be in breach of Article 22 [text, PDF] of the South Korean Act on Promotion of Information and Communication Network Utilization and Information Protection, which states "If an information and communications service provider intends to gather user personal information, they shall obtain user consent."

In July, The Hamburg Commissioner for Data Protection and Freedom of Information [official website, in German] announced that he initiated legal proceedings [JURIST report] against Facebook for accessing and saving non-users' personal information. Dr. Johannes Caspar [official profile, in German] stated the social networking site could be fined tens of thousands of euros for violating Germany's strict privacy laws [materials, PDF; in German]. In January, the Canadian Office of the Privacy Commissioner [official website] announced that it would launch a new probe [JURIST report] of Facebook to investigate privacy issues in response to complaints. Last year, five Facebook users sued the company in a California court alleging the site violated their privacy [JURIST report].




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ACLU appeals CIA rendition case to Supreme Court
Jaclyn Belczyk on December 8, 2010 3:37 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Tuesday filed an appeal [cert. petition, PDF; press release] with the US Supreme Court [official website] to overturn a ruling dismissing its suit over the CIA's extraordinary rendition program [JURIST news archive]. In a September en banc rehearing, the full US Court of Appeals for the Ninth Circuit [official website] affirmed the district court's decision to dismiss the suit [JURIST reports] against Boeing subsidiary Jeppesen Dataplan [corporate website] on the basis of the state secrets privilege [JURIST news archive]. In its petition for certiorari, the ACLU argued that changes in the way the state secrets privilege has been applied warrant a Supreme Court review.

The plaintiffs, Binyam Mohamed [JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmaad Bashmilah and Bisher al-Rawi, alleged that Jeppesen Dataplan knowingly aided in the rendition and subsequent torture of terror suspects by the CIA. Before Jeppesen could file an answer to the original complaint, the Department of Justice (DOJ) intervened [JURIST report] and asserted the state secrets privilege, arguing that fact-finding in the case could jeopardize national security. The district court dismissed the case and a three-judge panel of the Ninth Circuit overturned [JURIST report] the ruling on appeal. The DOJ then asked the Ninth Circuit to reconsider the case with a full panel, and was granted an en banc rehearing [JURIST reports]. The original Ninth Circuit panel ruled that the state secrets privilege can only be invoked in relation to established evidence in the case, not just at the possibility that such evidence may be uncovered should the case proceed.




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France court begins trial of Chilean officials over Pinochet-era disappearances
Megan McKee on December 8, 2010 3:31 PM ET

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[JURIST] A French court began proceedings in absentia Wednesday against 14 former Chilean officials over the disappearance of four French citizens during the regime of Augusto Pinochet [BBC profile; JURIST news archive]. The defendants are primarily high-ranking military officers, including former defense minister Herman Brady-Roche and Juan Manuel Contreras Sepulveda, Pinochet's chief of secret police. The men are subject to international arrest warrants and face charges [AFP report] of kidnapping, arbitrary detention and torture. While the defendants are not present in court, it is hoped that the trial will offer some justice to the victims' families. The trial is expected to finish December 17, and if convicted, the men could receive life sentences.

In July, the Chilean Supreme Court released a report detailing the secret fortune of Pinochet, estimating it at over $20 million. This report joins another on Pinochet's hidden assets released last September [JURIST report]. That report concluded that Pinochet amassed USD $25,978,602 in accounts held outside of Chile, of which $20,199,753 is suspected to have been embezzled from official funds. The September report also concluded that the funds were accumulated [Los Tiempos report, in Spanish] over the period from 1973 to 2004, when a US Senate sub-committee investigation first uncovered the accounts [JURIST report]. Victim advocates say the report supports allegations that Pinochet was the recipient of bribes and had other unlawful sources of income.




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Supreme Court mulls Arizona immigration employment law
Jaclyn Belczyk on December 8, 2010 2:36 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 Chamber of Commerce v. Whiting [oral arguments transcript, PDF; JURIST report] on whether an Arizona statute imposing sanctions on employers that hire illegal immigrants is preempted by federal law. According to 8 USC § 1324(a)(h)(2) [text], federal law preempts any "[s]tate or local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," except in cases of state licensing laws. The US Court of Appeals for the Ninth Circuit upheld [opinion, PDF; JURIST report] the Legal Arizona Workers Act [materials] on the basis that the state statute is a licensing law, which exempts it from being preempted by the federal law. Counsel for petitioners argued that:
Congress provided for an exhaustive and exclusively Federal method of bringing to the attention of Federal authorities, problems and worker authorization, the method by which those matters should be investigated, the method by which they should be adjudicated, all of which are controlled as a matter of Federal, exclusive Federal activity; and indeed the ultimate judicial review goes exclusively to the Federal courts of appeals.
Counsel for the respondents argued that, "[t]hrough their police powers, States traditionally have the authority to regulate the conduct of employers within their jurisdiction to determine what conduct warrants issuance of a State license and to determine what conduct justifies suspending or revoking such a license." Justice Elena Kagan took no part in the arguments, which could result in a 4-4 split decision. Such a ruling would leave the Ninth Circuit's decision in place but would not be precedential in future cases.

Also Wednesday, the court heard arguments in Chase Bank USA v. McCoy [oral arguments transcript, PDF; JURIST report] on whether a creditor seeking to raise the interest rate on a credit card where the cardholder defaulted must provide the cardholder with a change in terms notice. According to Regulation Z, 12 CFR § 226.9(c) [text], a creditor must provide a cardholder with a change in terms notice when the contractual terms governing the account have changed. The court will determine if a change in the interest rate due to the cardholder's default falls within the terms of the statute. The Ninth Circuit found [opinion, PDF] that Regulation Z does require the creditor to provide the cardholder with a change in terms notice where the cardholder has defaulted triggering an increase in the interest rate.




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ICTY reduces sentence for officer convicted of Vukovar killings
Jaclyn Belczyk on December 8, 2010 1:43 PM ET

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[JURIST] The appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday vacated the conviction [judgment summary, PDF; press release] of Veselin Sljivancanin [BBC profile; ICTY materials] for his role in killing 194 Croatian prisoners of war near Vukovar [BBC backgrounder; ICTY backgrounder, PDF] in 1991, reducing his sentence from 17 years to 10. Sljivancanin was convicted in 2007 of aiding and abetting the torture of non-Serb prisoners taken from Vukovar Hospital to the farm near Ovcara and sentenced to a term of five years. His conviction was upheld [JURIST report] by the appeals chamber in 2009, which added an additional conviction for aiding and abetting murder and increased his sentence to 17 years. The appeals chamber granted Sljivancanin's application for review in July, and, based on new evidence, vacated the murder conviction. The appeals chamber found that the original five-year sentence was inadequate for aiding and abetting torture and sentenced him to 10 years.

Last month, Serbian President Boris Tadic [official website, in Serbian] apologized [JURIST report] for Serbian war crimes during a visit to Croatia. Tadic and Croatian President Ivo Josipovic [official website, in Croatian] together visited a memorial in Vukovar. Tadic said, "I came here to offer an apology and express regret." Tadic is the first Serbian president to visit the site [BBC report], as the two countries continue to try to find ways to improve relations. Opposition in both countries criticized the visit, calling it nothing more than a political stunt and meaningless.




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Bank of America reaches $137 million settlement with SEC
Andrea Bottorff on December 8, 2010 11:52 AM ET

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[JURIST] The US Securities and Exchange Commission (SEC) [official website] announced Tuesday that it had reached a $137 million settlement agreement [press release] with Bank of America (BOA) [corporate website] over fraud charges [order, PDF] for using anti-competitive bidding processes with 20 state municipalities. BOA has agreed to pay [press release] $36 million, including interest, to the parties harmed by the scheme, as well as $101 million in penalties to federal and state authorities. The order against BOA alleges that the company put at risk the tax-exempt status of the municipal securities by establishing fraudulent fair market values using "improper bidding practices" between 1998 and 2002. The settlement payments will include investigation fees for attorneys general in all 20 affected states. BOA emphasized that other companies are also under investigation and that it was the only company so far to self-report its fraudulent behavior to the Antitrust Division of the Department of Justice [official website].

BOA has been active in reaching settlement agreements with federal agencies. The SEC announced in September that a judge in the US District Court for the Southern District of New York [official website] had approved a $150 million fund [JURIST report] set up by BOA in accordance with the settlement agreement [JURIST report] reached earlier this year. The SEC had charged [JURIST report] BOA with misleading investors regarding billions of dollars paid to Merrill Lynch [corporate website] executives during the acquisition of the firm. The fund will be used for payouts to shareholders [Reuters report] who owned BOA stock as of January 16, 2009. In June, BOA subsidiary Countrywide Home Loans, Inc. reached a $108 million settlement agreement [text, PDF; JURIST report] with the Federal Trade Commission (FTC) [official website] to resolve charges that the subsidiary collected excessive fees from homeowners facing foreclosure. The agreement allows the FTC to create a fund to provide refunds to borrowers affected by Countrywide's improper fees. The settlement did not include an admission of wrongdoing by BOA but required the company to stop the improper practices.




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Senate votes to remove federal judge from bench
Jaclyn Belczyk on December 8, 2010 11:21 AM ET

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[JURIST] The US Senate [official website] voted unanimously Wednesday to convict federal judge Thomas Porteous on four articles of impeachment and remove him from the bench. Porteous was accused of accepting bribes from lawyers while a judge in the US District Court for the Eastern District of Louisiana [official website], making false statements in his bankruptcy declaration and lying to Congress during his confirmation. Porteous's lawyer Jonathan Turley [personal blog] had argued [JURIST report] that Porteous had shown poor judgment but that his actions were entirely legal. Porteous becomes just the eighth federal judge to be impeached and convicted by Congress.

The US House of Representatives [official website] voted unanimously [JURIST report] in March to impeach Porteous. After an investigation [report text, PDF] by a special committee, the Judicial Conference found "substantial evidence" that Porteous had signed false financial disclosure forms, falsified statements in a personal bankruptcy proceeding, made false representations to secure a bank loan and violated criminal laws [text] and ethical rules by soliciting and receiving "cash and other things of value" from lawyers in a bench trial over which he was presiding. Porteous' decision in that case, In re Liljeberg enters v. Lifemark Hospitals, was later partially reversed [opinion text] by the Fifth Circuit, which earlier this year reprimanded Porteous [text, PDF]. A House committee began investigating Porteous [JURIST report] in 2008.




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Federal appeals court upholds indefinite detention of mentally ill sex offenders
Andrea Bottorff on December 8, 2010 10:27 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] unanimously Monday that a federal law allowing for the indefinite detention of mentally ill sex offenders is constitutional. On remand from the Supreme Court, the Fourth Circuit found that the Adam Walsh Child Protection and Safety Act [18 USC § 4248 text], which allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he or she would otherwise be released, does not violate due process. According to the act, a court would need to prove by "clear and convincing evidence" that the sex offender is still a threat to the public. The plaintiffs in the case, inmates who face civil commitment for sex offenses, argued that the low standard of proof violated due process and should be elevated to "proof beyond a reasonable doubt," the same standard used in criminal cases. However, the court emphasized that such a high standard of proof is unnecessary:
Nothing in the Act requires that the finding of past conduct constitute criminal behavior. By its terms, the Act mandates a finding that a person "has engaged or attempted to engage in sexually violent conduct or child molestation." The Act does not define the terms "sexually violent conduct" and "child molestation," which are broad enough to encompass noncriminal conduct such as unlawful, tortious conduct.
Although the inmates argued that indefinite detention mirrored criminal imprisonment, the court insisted that, unlike criminal incarceration, the law called for the release of individuals deemed to no longer be threats to society and allowed for third parties to request the release of such individuals every six months.

The Supreme Court upheld the act [JURIST report] in May in United States v. Comstock [Cornell LII backgrounder] and remanded to the Fourth Circuit. The court said the act was constitutional because the Necessary and Proper Clause [text] granted Congress sufficient authority to pass such laws. A month later, the court made another decision concerning sex offenders in Carr v. United States [Cornell LII backgrounder, JURIST report], ruling that the failure to register provision [18 USC § 2250] of the Sex Offender Registration and Notification Act (SORNA) [DOJ backgrounder] does not apply retroactively [JURIST report] to offenses occurring before SORNA's enactment. The court agreed to hear the case [JURIST report] in order to reconcile a split in the reading of the statute between the Seventh and Tenth Circuits.




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Supreme Court considers securities fraud, employment discrimination cases
Jaclyn Belczyk on December 7, 2010 3:08 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 Janus Capital Group v. First Derivative Traders [oral arguments transcript, PDF; JURIST report], a securities fraud case. The question before the court is whether a service provider can be held primarily liable in a private securities fraud suit for aiding and participating in another company's misstatements. Section 10(b) of the Securities and Exchange Act [materials] prohibits any manipulation or deception in connection with the purchase or sale of securities, but it is unclear whether the liability associated with the act extends to service providers that aided in the selling of securities where misinformation was involved. The US Court of Appeals for the Fourth Circuit overturned [opinion, PDF] the district court decision and allowed a class action against the petitioner to proceed, holding that a service provider may be liable for securities fraud. There is currently a circuit split on this issue.

In Thompson v. North American Stainless [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a third party is afforded protection against retaliation when they have made claims about bias in the workplace that were not directly related to their own treatment. Title VII of the Civil Rights Act [42 USC § 2000e-3(a) text] prohibits retaliation against a worker who has complained of bias in the workplace, but it is unclear whether that protection extends to a third party associated with the worker complaining of the bias. The US Court of Appeals for the Sixth Circuit affirmed [opinion, PDF] the district court's ruling and held that the statute only protects workers personally engaging in the protected activity, in this case complaining of workplace bias. The court has also been asked to decide if a civil remedy can be sought by third party, if the court of appeals ruling is upheld.




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Europe rights court finds Scotland in violation of media rights
Julia Zebley on December 7, 2010 2:12 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] Tuesday that Scotland has violated the media's right to report on trials and challenge court orders. The ECHR found the UK and Scotland in violations of articles 10 and 13 of the European Convention on Human Rights [text], which provide for the right to free expression and the right to an effective remedy, respectively. Alan Mackay, a now-retired reporter for BBC Scotland [official website], sought to report on police and prosecutorial misconduct during a 2004 drug case. The judge barred Mackay and BBC Scotland from reporting on the incident during the trial, citing section 4(2) of the Contempt of Court Act 1981 [text], and refused to allow appeal on the issue. The ECHR noted:
[U]nder the present system, any Scottish court which makes a section 4(2) order is under no obligation to hear representations from the media and, even where it does hear such representations, there is no obligation upon it to do so within a reasonable period of time and in any event prior to the proceedings to which the section 4(2) order relates. ... The Court has repeatedly stated that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. ... When proper consideration is given to what is at stake for the media when section 4(2) orders are imposed, it becomes apparent that current Scottish practice provides too slender a basis for the safeguards which are required in this context.
The UK may choose to appeal to the ECHR's Grand Chamber within three months. Mackay and BBC Scotland did not seek, and were not granted, any forms of relief. The Independent reports [text] that the Scottish government is "already working with the courts to address the issues raised by this case."

Protection and rights for journalists [JURIST news archive] continue to be of worldwide concern. In October, Canada broadened [JURIST report] journalists' rights to protect sources. In April, Germany announced plans to enact legislation [JURIST report] meant to increase freedom of the press. In February, the Icelandic Parliament [official website, in Icelandic] began considering measures [JURIST report] aimed at increasing protections for journalists and promoting freedom of speech and transparency in government. Last December, the US Senate Judiciary Committee [official website] approved a bill [JURIST report] that would protect journalists' abilities to shield sources in federal court proceedings. Reporters Without Borders [advocacy website] ranked Finland number one in press freedom in 2010 [2010 rankings], with Iceland second, Canada twenty-first, Germany seventeenth, and the US twentieth. The UK ascended from the previous year, moving from twentieth to nineteenth.




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Toronto G-20 security measures 'illegal': report
Jaclyn Belczyk on December 7, 2010 1:54 PM ET

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[JURIST] A local regulation [O Reg 233/10 text] that broadened the scope of police search and seizure powers in certain areas of Toronto during June's Group of 20 (G-20) summit [official website] "was of dubious legality and no utility" and resulted in a mass violation of civil rights, according to a report [text, PDF; press release] released Tuesday by the Ombudsman of Ontario [official website], Andre Marin. The regulation was quietly enacted under the 1939 Public Works Protection Act (PWPA) [text] and allowed police to require anyone present in certain areas of Toronto to identify themselves or be subjected to a search. In the report, entitled "Caught in the Act," Marin concluded that, "Regulation 233/10 ... should never have been enacted. It was likely unconstitutional." In remarks [text, DOC] delivered Tuesday, Marin said:
Reviving this dormant piece of legislation, coupled with the adoption of the regulation, created a legal landscape where people were detained by police and compelled to identify themselves, answer questions and submit to warrantless searches—even if they simply wanted to walk away. Responsible protesters and civil rights groups who took the trouble to educate themselves about their rights prior to the G20 had no way of knowing they were walking into a trap—they were literally caught in the Act; the Public Works Protection Act and its pernicious regulatory offspring.
Marin recommended that the Ministry of Community Safety and Correctional Services [official website] revise and consider replacing the PWPA, which is unique to Ontario, and that it make sure that any similar regulations are clearly communicated to the public in the future.

Marin launched the investigation [JURIST report] in July after his office received 22 complaints regarding security measures during the G-20 summit. It was the first time the Ombudsman used social media in conducting an investigation. In September, two individuals detained during the G-20 filed a class action suit [JURIST report] on behalf of 1,150 individuals detained during the summit. The individuals, Miranda McQuade and Mike Barber, named three defendants in the suit, the Canadian Attorney General, the Toronto Police Services Board and the Regional Municipality of Peel Police Services Board [official websites]. The plaintiffs claim that law enforcement committed numerous intentional torts against those detained between June 25 and June 30. In early July, protesters in Toronto took to the streets and demanded an investigation [JURIST report] into police conduct during the meeting. Soon after the conclusion of the summit, in late June, the Canadian Civil Liberties Association called for an inquiry [JURIST report] into police conduct and treatment of protesters.




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Zambia high court acquits ex-president's wife on corruption charges
Andrea Bottorff on December 7, 2010 1:18 PM ET

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[JURIST] Zambia's Supreme Court on Monday acquitted Regina Chiluba, the wife of former Zambian president Frederick Chiluba [BBC profile], of charges that she accepted stolen property during the years of her husband's administration. The court overruled a previous decision from March that sentenced [BBC report] her to three-and-a-half years in prison on charges of receiving stolen funds. All three justices ruled that there was insufficient evidence [Lusaka Times report] to find Regina Chiluba guilty of knowingly keeping the stolen items, which included large amounts of cash, an automobile and a television set, although the court also required her to return some of the property.

Frederick Chiluba was acquitted [JURIST report] last year of charges of stealing money from the country's treasury while in office from 1991-2001. He and two Zambian businessmen faced a total of 12 counts of theft of public funds for their alleged involvement in taking $488,000 when the treasury deposited payments to two US security firms into a London bank account controlled by the Zambia Security and Intelligence Services (ZSIS). The court found insufficient evidence to convict Chiluba, but the businessmen were found guilty. Chiluba was ordered to stand trial [JURIST report] on the corruption charges in February 2008. In a separate case, Chiluba was ordered by a London court in July 2007 to pay $58 million in fines [JURIST report] to Zambia to compensate for other funds stolen during Chiluba's decade in power. The suit was brought in Britain [BBC report] by Zambian officials because Chiluba and his associates held the assets in the UK and other European countries.




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Philippines high court rules 'truth commission' unconstitutional
Andrea Bottorff on December 7, 2010 11:06 AM ET

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[JURIST] The Supreme Court of the Philippines [official website] on Tuesday ruled [judgment text] that a proposed "truth commission" created to investigate former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] is unconstitutional. President Benigno Aquino [BBC profile] set up the "truth commission" in July to investigate allegations that the outgoing administration engaged in corruption and rights violations, like rigging the 2004 presidential election, misusing government funds and profiting from government contracts. The court held that the "truth commission" violates equal protection by attacking only certain political individuals suspected of corruption. Critics of the court's decision argue that most of the justices were appointed by Arroyo and may still be loyal [Philippine Daily Inquirer report] to the previous regime. Justice Secretary Leila De Lima criticized the ruling [press release] as "a setback in the campaign against graft and corruption." The government has 15 days to appeal the decision.

Aquino announced plans to create the commission [JURIST report] over the summer, prompting a call for him to issue an executive order to make the commission official and clear up any ambiguity regarding its authority. Arroyo has repeatedly denied any wrongdoing. She was elected to the lower house of parliament in April after receiving permission to run for the seat [JURIST report] despite protests that her presidency gave her an unfair advantage. In March, Aquino and other presidential candidates criticized as "unjust" a Supreme Court ruling that allowed Arroyo to appoint a replacement for the retiring chief justice [JURIST report] who planned to step down a week after the May presidential elections. Arroyo declared martial law [JURIST report] in December for the first time in 23 years in the wake of a massacre in the Maguindanao province that left 57 dead. In February, prosecutors charged 197 people with murder [JURIST report] in connection with the massacre. A Manila trial court ordered the arrest of 189 more suspects [JURIST report] in March. Eleven policemen and militia members pleaded not guilty [JURIST report] to the charges in April.




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Federal judge dismisses targeted killing lawsuit
Jaclyn Belczyk on December 7, 2010 11:02 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Tuesday dismissed [opinion, PDF] a lawsuit [JURIST report] challenging 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]. Judge John Bates found that the court lacked jurisdiction over the case, filed by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites] on behalf of Awlaqi's father, dismissing it on procedural grounds and noting that important questions remain:
But "[a] court without jurisdiction is a court without power, no matter how appealing the case for exceptions may be," and hence it is these threshold obstacles to reaching the merits of plaintiff's constitutional and statutory challenges that must be the initial focus of this Court's attention. Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.
Bates found that Awlaqi's father lacked standing and that the case presented a non-justiciable political question. The ACLU criticized the ruling [press release], saying that if it is correct, "the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation."

Bates heard arguments [JURIST report] in the case last month. The arguments took place on the same day Awlaqi called for jihadist attacks on US citizens in a video posted on extremist websites. 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]. Earlier in November, 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].




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Ninth Circuit hears arguments on California same-sex marriage ban
Jaclyn Belczyk on December 6, 2010 3:56 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] heard oral arguments [video] Monday in Perry v. Schwarzenegger [case materials] on Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. A federal judge struck down Proposition 8 [JURIST report] in August. Lawyers for parties seeking to appeal, including Proposition 8 supporters Protect Marriage [advocacy website] and Imperial County, California, deputy clerk Isabel Vargas argued that their clients had standing to defend the measure, while lawyers for Proposition 8 opponents argued that there was no injury suffered by the appellants. The opponents also argued that there was no constitutional basis for denying same-sex couples the right to marry. The proceedings were televised live on C-SPAN.

In October, lawyers representing the city of San Francisco submitted a brief [text, PDF] arguing that Proposition 8 is irrational under California state law [JURIST report]. In September, officials in Imperial County, California, also submitted a brief [JURIST report] appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief [JURIST report] seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District [official website] ruled [JURIST report] that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown [official websites] is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Project Marriage and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.




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ICC examines possible war crimes charges against North Korea
Sarah Posner on December 6, 2010 3:16 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] confirmed on Monday that the prosecutor's office has opened preliminary examinations to evaluate possible war crimes committed by North Korea [press release]. ICC chief prosecutor Luis Moreno-Ocampo [official profile] verified that evaluations will determine if some of the incidents by North Korean forces in South Korea constitute war crimes, giving the ICC jurisdiction over the matter. According to the ICC's press release, the incidents under ICC evaluation include:
the shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others; and the sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.
The Rome Statute [text] mandates the ICC's Office of the Prosecutor to conduct preliminary examinations in order to determine if opening an investigation would meet the Rome Statute's criteria.

Last week, South Korean President Lee Myung-bak called North Korea's shelling of Yeonpyeong, which killed four, including two civilians, a crime against humanity [JURIST report]. North Korea's ongoing conflict with the South is not the only human rights issue for which the country has faced criticism. Last 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 [A/HRC/13/L.13 materials] condemning [JURIST report] North Korea for grave human rights abuses. Earlier in March, UN Special Rapporteur for North Korea, Vitit Muntarbhorn [UN press release] reported [text, PDF] to the UNHRC that North Korean human rights situation was continuing to deteriorate [JURIST report]. This report came after Muntarbhorn's previous criticism, in October, 2009, of North Korea's "abysmal" [JURIST report] and ongoing human rights violations, alleging that the authoritarian government was responsible for various abuses, including torture, public executions, extensive surveillance, media censorship, women's rights violations and widespread hunger.




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Supreme Court hears arguments on veterans' benefits, sentencing
Jaclyn Belczyk on December 6, 2010 2:10 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 Henderson v. Shinseki [oral arguments transcript, PDF] on the time limits for seeking judicial review of the denial of a veteran's claim for disability benefits. The issue is whether the time limit in 38 USC § 7266(a) [text] constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is instead jurisdictional and therefore bars application of that doctrine. The US Court of Appeals for the Federal Circuit affirmed [opinion, PDF] the decision of the US Court of Appeals for Veterans Claims, which held that the 120-day appeal period set forth in § 7266(a) is not subject to equitable tolling and dismissed veteran David Henderson's claim for benefits. Counsel for Henderson argued that the Federal Circuit erred for three reason:
First, the statute contains no clear indication that the deadline is jurisdictional. Rather, the text and structure points away from a jurisdictional reading. Second, the deadline that applies to disabled and largely uncounseled veterans seeking their first day in court is not the type of deadline that Congress would be expected to rank as jurisdictional. And third, a jurisdictional reading would render some of the most disabled of veterans the least likely to obtain benefits and would treat veterans worse off than almost all litigants in our federal system.
Counsel for the respondent argued that "the judgment of the court of appeals should be therefore be affirmed" under the court's ruling in Bowles v. Russell [opinion text].

Also Monday, the court heard arguments in Pepper v. United States [oral arguments transcript, PDF] on whether a federal district judge can consider a defendant's post-sentencing rehabilitation as a permissible factor supporting a downward sentencing variance under 18 USC § 3553(a) [text]. The court must also determine whether, when a sentence is vacated on appeal and a new judge is assigned on remand, the new judge must follow the prior district judge's sentencing findings. The US Court of Appeals for the Eighth Circuit affirmed [opinion, PDF] the district court's 77-month sentence of Jason Pepper for a drug offense. At the certiorari stage, the US government agreed with Pepper that the Eighth Circuit erred and urged the justices to vacate and remand the case, but the court decided to take the case, leaving amicus curiae to argue in support of respondents.




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Supreme Court to hear Wal-Mart gender discrimination, global warming cases
Jaclyn Belczyk on December 6, 2010 12:26 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in Wal-Mart v. Dukes [docket; cert. petition, PDF], a massive gender discrimination class action lawsuit. The issues are (1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) [text] and, if so, under what circumstances; and (2) whether the class certification ordered under rule 23(b)(2) was consistent with rule 23(a). The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April. The certified class, which in 2001 was estimated to comprise more than 1.5 million women, includes all women employed by Wal-Mart nationwide at any time after December 26, 1998, making this the largest class action lawsuit in US history.

Also Monday, the court agreed to hear American Electric Power Co. v. Connecticut [docket; cert. petition, PDF], regarding whether electric utilities contributed to global warming [JURIST news archive]. The questions presented are:

  1. Whether States and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources.

  2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency.

  3. Whether claims seeking to cap defendants' carbon dioxide emissions at "reasonable" levels, based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct, would be governed by "judicially discoverable and manageable standards" or could be resolved without "initial policy determination[s] of a kind clearly for nonjudicial discretion."
The US Court of Appeals for the Second Circuit ruled last year that states can sue power companies for emitting carbon dioxide, reversing a district court decision [JURIST reports] that found the plaintiffs' claim was a non-justiciable political question. The lawsuit was brought by eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin—as well as New York City and three land trusts, against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation [corporate websites] and the Tennessee Valley Authority [official website].




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France court convicts US airline in Concorde jet crash
Daniel Makosky on December 6, 2010 11:28 AM ET

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[JURIST] A French court on Monday found US-based Continental Airlines [corporate website] and one of its employees guilty of manslaughter for their roles in the Air France Concorde jet crash [BBC backgrounder] outside Paris in 2000. The court found [CBC report] that a piece of metal fell off a Continental plane and onto the runway, later causing damage to the Concorde that led to the crash. The court also convicted Continental mechanic John Taylor for improperly maintaining the plane that used the runway prior to the Concorde, sentencing him to a 15-month suspended sentence and a USD $2,670 fine. Continental was ordered to pay Air France USD $1.44 million for damage to its reputation and fines of roughly USD $267,000. Additionally, the court awarded several civil parties USD $362,000 in damages to be paid by Continental and Taylor. The other defendants, including two former high-ranking Concorde employees and the retired head of the French aviation authority, were acquitted. Continental stated that it intends to appeal the ruling.

The trial, which began [JURIST report] in February, faced criticism [Daily Mail report] for starting a decade after the accident and after victims' families received settlements in 2001 and the Concorde jet was officially retired by all airlines in 2003. More than 100 people died when Air France Concorde flight 4590 crashed into a hotel shortly after takeoff in July 2000. The French Bureau of Investigations and Analysis (BEA) [official website, in French] concluded [report, in French, PDF] in 2004 that the crash was caused by a metal strip that fell from the Continental Airlines flight and pierced the Concorde's tire.




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ICTR convicts former military officer of genocide
Daniel Makosky on December 6, 2010 10:49 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Monday sentenced [judgment summary, PDF; press release] former Rwandan Armed Forces lieutenant Ildephonse Hategekimana [case materials] to life imprisonment after convicting him on charges of genocide and crimes against humanity. The court found Hategekimana guilty [AFP report] of three counts of genocide stemming from his involvement in the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive], specifically in the massacre of civilian Tutsis in the Rwandan town of Butare. Hategekimana was also convicted on one count of crimes against humanity for his role in the murder of several others and one woman's rape, and acquitted of one count of complicity in genocide. The ICTR retained jurisdiction [JURIST report] over Hategekimana in 2008 when it declined to transfer the trial to Rwandan domestic courts, citing concerns regarding the country's criminal justice system.

Last month, the ICTR convicted [JURIST report] former Rwandan businessman Gaspard Kanyarukiga on charges of genocide and extermination as a crime against humanity and sentenced the 65-year-old to 30 years in prison. The ICTR's work has recently been hampered by a lack of resources, leading the tribunal to ask the UN for assistance [JURIST report] in October. In September, the ICTR opened the trial of a former Kivumu mayor [JURIST report] charged in connection with deaths at a church in that town in April 1994. The tribunal has faced adversity since its creation, including the shooting death [JURIST report] of one of the senior defense lawyers in July. Earlier this year, Joseph Nzirorea, former president of the Rwanda National Assembly and secretary general of the National Republican Movement for Democracy and Development, died while on trial [JURIST report] for conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, complicity in genocide, crimes against humanity and serious violations of Common Article 3 of the Geneva Conventions [text].




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Pakistan court delays efforts to amend blasphemy laws
Jaclyn Belczyk on December 6, 2010 10:08 AM ET

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[JURIST] The Lahore High Court (LHC) [official website] on Monday ordered a stay against any amendments to Pakistan's blasphemy laws [text; JURIST news archive] pending further proceedings. The court ruled [The News report] on a petition filed by a citizen, which argued that parliament does not have the right to amend the law. Controversy surrounding Pakistan's blasphemy law has recently been ignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. The court found [ANI report] that parliament may not take any action on amending the blasphemy laws until it delivers its final verdict in the case. The next hearing is scheduled for December 23. The LHC also postponed [AsiaNews report] the hearing for Bibi's pardon indefinitely.

The blasphemy laws were introduced in 1986 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] has said the laws may be amended to prevent misuse, but they will not be repealed. Advocacy groups such as Human Rights Watch [JURIST report], as well as LHC advocate Saroop Ijaz [JURIST op-ed] have called for the laws to be repealed. In February, 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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Pakistan court orders police arrested in Bhutto assassination investigation
Aman Kakar on December 5, 2010 2:39 PM ET

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[JURIST] A Pakistani Anti-Terrorism Court (ATC) issued warrants on Saturday for the arrest of two police officers accused of failing to protect assassinated former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. Special Judge of ATC Rana Nisar Ahmed Khan issued non-bailable warrants [Daily Times post] for the arrests of former police chief of the city of Rawalpindi, Syed Saud Aziz and one of his deputies, Khurram Shahzad. Special prosecutor Chaudry Zulfiqar Ali had argued that the officers failed to adequately provide [Reuters report] for Bhutto's security and ordered the crime scene hosed down. The court will resume hearings on December 11, when it will also charge five others who have already been arrested.

The Pakistani government and police forces have been criticized before for their part in Bhutto's assassination. In April, the independent UN commission formed to investigate the assassination issued a report [JURIST report] holding the Pakistani government and police forces responsible for failing to provide adequate security. The report also accused the government of failing to launch a proper investigation into the assassination. The three-member commission was formed [JURIST report] in June 2009. Members included former Chilean Ambassador to the UN Heraldo Munoz, former attorney general of Indonesia Marzuki Darusman, and Peter Fitzgerald, a former deputy police commissioner in the Irish National Police who has served with the UN in other capacities. Bhutto was killed in a suicide attack in December 2007 that claimed the lives of at least 20 other people. At that time, Bhutto was the head of the opposition Pakistan People's Party, which was challenging then-prime minister Pervez Musharraf's Pakistan Muslim League-Quaid (PML-Q) [party websites] in the lead-up to parliamentary elections.




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Guinea president-elect to create truth and reconciliation commission
Ann Riley on December 5, 2010 12:17 PM ET

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[JURIST] Guinea's President-elect Alpha Conde announced Saturday that he will create a truth and reconciliation commission to address decades of ethnic and political violence. Conde said on state television that reconciliation was essential to rebuild [Reuters report] the volatile country. The commission will be modeled on South Africa's Truth and Reconciliation Commission [official website] created by Nelson Mandela after the fall of apartheid. The commission is likely to be well received by human rights groups. Last week, Human Rights Watch (HRW) [advocacy website] reported that, when responding to violence during the elections last month, Guinea used excessive force and lacked political neutrality. HRW urged the new government [press release], headed by Conde to:
  • Bring to justice those responsible for the gross abuses, both in connection with election-related violence, and the killings of more than 150 opposition supporters and rapes of 100 women by security forces in September 2009; ...
  • Establish a truth-telling mechanism to uncover the roots of ethnic violence, investigate the historical persecution of particular ethnic groups, explore the dynamics that gave rise to and sustained cycles of successive authoritarian and abusive regimes, and make recommendations to ensure better governance and prevent a repetition of past violations; ... and
  • Ensure that those responsible for inciting and carrying out violence are investigated and held accountable, including members of both political parties.
Last week, the Guinea Supreme Court [GlobaLex backgrounder] validated [JURIST report] that Conde won the presidency in the first free election since the country's independence from France.

After the first presidential election in June, no candidate received enough votes to claim a majority [JURIST report], and a runoff was held between former prime minister Cellou Dalein Diallo and Conde. The election came at the conclusion of 18 months of governance by a military junta, which took power in a 2008 coup. The coup followed the death of Lansana Conte [BBC profile], who had ruled the West African country since 1984. 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 Guinean military leader Moussa Dadis Camara [BBC profile], 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. An assassination attempt on Camara two months later eventually drove him into exile.




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Leaked cables reveal China officials oversaw Google hack
Ann Riley on December 5, 2010 11:46 AM ET

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[JURIST] Chinese officials allegedly orchestrated the hacking [JURIST report] of Google [corporate website; JURIST news archive], which caused the Internet company to briefly pull out of China earlier this year, according to a Saturday New York Times report [text] citing a series of documents released last week by Wikileaks [website; JURIST news archive]. Many cables display China's obsession with the threat of the Internet, the government's attempts at censorship [JURIST news archive] and the opportunities hacking provided to obtain secrets of its rivals, namely the US. A cable from earlier this year revealed that China's senior propaganda official Li Changchun [BBC profile] directed an attack on Google servers in the US. According to a source with close elite connections, Li and China's top security official Zhou Yongkang [BBC profile] personally oversaw the hacking of google.cn [search website]. A secret cable from the US State Department [official website] warned employees of hacking attempts by China during the 2009 climate change talks [JURIST report]. The cables also reveal that individuals linked to the People's Liberation Army [GlobalSecurity background] conducted a hacking scheme in 2008 that produced more than 50 megabytes of e-mail messages, user names and passwords from an unidentified US government agency. Other cables reveal China's concerns regarding Google Earth [mapping website] satellite mapping and the lack of censorship by Google's search engine.

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. The US Department of Justice (DOJ) and the Department of Defense (DOD) [official websites] said last week they were conducting criminal investigations [JURIST report] into WikiLeaks over its release of confidential government communications. Last month, Google urged the international community to ensure the free flow of online information [white paper text; JURIST report] by establishing new rules to protect against limitations on the Internet. In September, the State Council Information Office of the People's Republic of China [official website, in Chinese] released a position paper [JURIST report] claiming that it has heightened Internet freedoms and describing how the Internet has become a tool for the Chinese government to promote transparency and consult the public before developing certain policies. While the government said freedom of speech is protected on the Internet, it also attached value to the Internet's role in supervision. 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, the government announced new regulations [JURIST report] further restricting Internet use by requiring Chinese citizens to submit identity cards and meet with regulars before registering a website, prompting many to register sites overseas to avoid regulation.




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Senate committee hears military chiefs' 'Don't Ask Don't Tell' testimony
Daniel Makosky on December 4, 2010 3:10 PM ET

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[JURIST] The Senate Armed Services Committee (SASC) [official website] on Friday heard conflicting testimony [materials] from top military leaders on the services' readiness to repeal "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive]. Commandant of the Marine Corps General James Amos [official profile] urged the Committee to delay the policy's repeal, arguing that ongoing operations in Iraq and Afghanistan would complicate the integration of openly gay service members at this time. Amos' sentiments were echoed by the Chiefs of Staff for the Army and Air Force, Generals George Casey, Jr. and Norton Schwartz [official profiles], respectively. Chief of Naval Operations Admiral Gary Roughead [official profile] and Admiral Robert Papp, Jr. [official profile, PDF], Commandant of the Coast Guard, however, joined Vice Chairman of the Joint Chiefs of Staff General James Cartwright [official profile] in offering a more optimistic perspective. Acknowledging that difficulties will follow repeal, Cartwright reiterated his belief in the military's inclusivity, saying:
Waiting for a more ideal time to decide this question is obviously one option; however, difficult tasks are rarely well served by delay. It is hard to foresee a time when the men and women of the U.S. military will be more focused and disciplined than they are today. We must be prudent in our approach, but there is little to suggest that the issues associated with a change in the law and [Department of Defense] policy will diminish if we wait on the uncertain promise of a less challenging future.
Regardless of their individual views, each emphasized their readiness to implement the repeal if so ordered.

The SASC hearing was the second in as many days to review a Department of Defense (DOD) [official website] report [text, PDF; JURIST report], released earlier this week, that concluded that repealing DADT would only minimally effect military effectiveness, soldier retention and family readiness. The DOD also released a Support Plan for Implementation [text, PDF], laying out the Comprehensive Review Working Group's recommendations to proceed with the repeal in a form similar to a military operations order. Last week, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. In November, Defense Secretary Robert Gates called on the 112th Congress to repeal DADT [JURIST report]. Gates issued a memorandum in October limiting the authority to discharge openly gay service members [JURIST report] to five senior DOD officials. In September, the US Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the 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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US tobacco companies appeal $270 million settlement to Supreme Court
Erin Bock on December 4, 2010 11:42 AM ET

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[JURIST] US tobacco companies including Philip Morris and RJ Reynolds [corporate websites], along with an industry trade group, filed an appeal [cert. petition, PDF] with the US Supreme Court [official website] on Thursday to overturn a $271.5 million class action settlement. The settlement was awarded [ruling] by the Louisiana Court of Appeals for the Fourth Circuit [official website] in order to establish a fund meant to help Louisianans quit smoking. The ruling came after the court found the tobacco [JURIST news archive] companies had "distort[ed] the entire body of public knowledge about the addictive effects of nicotine." The Louisiana Supreme Court [official website] refused to hear an appeal. The tobacco companies argue that the Louisiana court procedure for filing and examining claims in the class-action suit was "unorthodox." Specifically, the parties argue that the court did not require any class member to prove the individual elements of their claims and that the only class members to testify at trial had already quit smoking.

Justice Antonin Scalia [Oyez profile] stayed the Louisiana court ruling [JURIST report] in September in his role as Circuit Justice for the US Court of Appeals for the Fifth Circuit. The stay prevented the companies from having to carry out the decision. Scalia indicated that it was likely the Supreme Court would grant certiorari, there was a "significant possibility" of reversal, there was a likelihood of irreparable harm without the stay and the ruling raised due process concerns. Philip Morris has faced other class action litigation related to its sales practices. In 2008, the US Court of Appeals for the Second Circuit overturned class action certification [JURIST report] for a lawsuit brought by "light" cigarette smokers against Philip Morris and other light cigarette makers. The class action, which included anyone who has ever bought light cigarettes since they hit the market in the 1970s, had alleged that tobacco companies used deceptive advertising tactics to mislead smokers in response to growing health concerns over the risks of smoking cigarettes. In September 2006, a judge for the US District Court for the Southern District of New York certified the class of 50 million plaintiffs [JURIST report] for the class-action suit. Lawyers estimated that sales of light cigarettes brought tobacco companies between $120 billion and $200 billion in extra sales since 1971.




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ICC prosecutor: Kenya threats will not stop election violence prosecutions
Sarah Paulsworth on December 3, 2010 4:28 PM ET

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[JURIST] Threats against witnesses will not prevent the prosecution of six individuals responsible for Kenya's 2007 post-election violence [JURIST news archive], International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo said Friday. According to the statement, the prosecutor will obtain arrest warrants for the individuals behind these threats if they persist. Within the next two weeks, Moreno-Ocampo plans to present two cases against the six individuals involved in the 2007 post-election violence. These six people allegedly "bear the greatest responsibility" [JURIST report] for the post-election violence. There has been much speculation about who the six people will be, but it is anticipated [VOA report] that they will be high-ranking officials in Kenya and influential businessmen.

Last month, the Kenya National Commission on Human Rights (KNCHR) [advocacy website], which implicated former Cabinet minster William Ruto of interfering with the ICC investigation, denied accusations that it had bribed witnesses [JURIST report]. Two witnesses, Ken Braziz Wekesa and William Kepkemboi Rono, claimed they were bribed by the KNCHR [Daily Nation report], a government-funded human rights group, to testify to the ICC against Ruto, the former higher education minister. Moreno-Campo said that the court will not use testimony [JURIST report] from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. In September, Kenyan businessman Joseph Gathungu filed a lawsuit challenging the constitutionality [JURIST report] of the ICC investigation into the violence following the 2007 Kenyan presidential election. The suit, which was filed in the High Court [GlobaLex backgrounder] in Mombasa, argues that the ICC investigation is illegal under the constitution adopted last month [JURIST report]. Violence following the 2007 Kenyan presidential election [JURIST report] left at least 1,000 people dead and 500,000 displaced after protests erupted from allegations that President Mwai Kibaki [official profile] committed voter fraud.




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Nigeria filing bribery charges against Cheney in connection with Halliburton contract
Sarah Paulsworth on December 3, 2010 2:46 PM ET

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[JURIST] Nigerian prosecutors announced Thursday that they are instituting bribery charges against former US vice president Dick Cheney [BBC profile] in connection in with a contract that Halliburton [corporate website; JURIST news archive] subsidiary Kellogg, Brown and Root (KBR) [corporate website] obtained to build a natural gas project in the Niger Delta area. Bribes amounting to USD $180 million were allegedly given to Nigerian government officials so that KBR could obtain the $6 billion construction contract. Cheney served as Halliburton's chief executive officer from 1995 through August 2000 [CBS report], while the bribery is alleged to have occurred from 1995 to 2005 [AFP report]. According to Godwin Obla, prosecuting attorney for Nigeria's Economic and Financial Crimes Commission, indictments will be issued within three days [WSJ report]. KBR spilt from Halliburton in 2007. In addition to Halliburton, indictments will also be issued to officials from four other foreign companies. Last year, Halliburton and KBR agreed to paid a $579 million fine [Bloomberg report] to resolve US criminal and regulatory violations stemming from the Bonny Island contract and bribery.

Halliburton and its subsidiaries and subcontractors have been implicated in a number of law violations. In July 2007, former Eagle Global Logistics (EGL) executive Kevin Andre Smoot pleaded guilty [JURIST report] to making a false statement and violating the Anti-Kickback Act. In 2006 EGL, a Houston-based company hired by KBR to ship military cargo to Iraq, paid the government $4 million [press release; JURIST report] to settle potential claims under the False Claims Act [text] that it inflated invoices for Iraq military cargo shipments. EGL was accused of charging a "war risk surcharge" on military shipments from Dubai, United Arab Emirates, to Iraq between November 2003 and July 2004. In November 2006, KBR settled fraud allegations [DOJ press release; JURIST report] under the False Claims Act and agreed to pay the US $8 million for allegedly overcharging the Army for logistical support it provided between 1999 and 2000. The DOJ alleged that KBR double-billed the military and delivered non-conforming goods to be used for the construction of Camp Bondsteel in Kosovo. According to a report issued in October 2006, KBR violated [JURIST report] the US Federal Acquisition Regulation (FAR) [official website] directive on classifying proprietary data by claiming protection for information normally in the public sphere.




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Guinea high court declares Conde winner of presidential election
Megan McKee on December 3, 2010 10:29 AM ET

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[JURIST] The Supreme Court of Guinea on Friday declared Alpha Conde the winner of November's presidential run-off election, validating the provisional results of the electoral commission and throwing out claims of electoral fraud. In light of escalating post-election violence, the Guinean government declared a state of emergency [JURIST report] last month, just three days after Conde was provisionally declared the winner by the electoral commission. The confirmation of the election results [Reuters report] by the Supreme Court was to bring the state of emergency to an end. Cellou Dalein Diallo, Conde's presidential rival, also conceded defeat on Friday.

In November, the deputy prosecutor of the International Criminal Court (ICC) [official website], Fatou Bensouda, issued a statement [text, PDF] lamenting the killing of seven people [JURIST report] in a post-election violence in Guinea. Bensouda 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. 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].




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New Mexico court rules same-sex partner cannot seek child custody
Megan McKee on December 3, 2010 9:48 AM ET

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[JURIST] The New Mexico Court of Appeals [official site] ruled [opinion, PDF] Wednesday that the same-sex partner of an adoptive mother has no standing to seek custody of the couple's child as a non-parent, but may request visitation. The court held that New Mexico's current child custody law provides no legal right for a non-parent to assert custody over a child and applies only to biological and adoptive parents. Accordingly, others, such as the unmarried partner of a parent, cannot seek custody absent a finding that the legal parent is unfit. In the majority opinion, Judge James Wechsler said "[i]t is the Legislature's responsibility to expand the requirements for standing if it wishes to do so." This holding breaks with previous decisions [AP report] in New Mexico that have favored recognizing psychological parenthood relationships.

The custody dispute involved former couple Bani Chatterjee and Taya King. In 2000, the couple adopted a one-year-old girl from Russia but, unsure how Russian adoption agencies would react to a same-sex couple, only King legally adopted the child. King and Chatterjee separated in 2008. Contending she shared in raising the couple's child for nine years and shared a parent-child relationship with King's daughter, Chatterjee filed suit in a state district court asking a judge to declare her a parent and decide custody and visitation. The judge, however, dismissed the case. Other jurisdictions have struggled with similar issues. Last year, a New York state appeals court ruled that a same-sex partner lacks standing to assert parental rights [JURIST report] over the biological child of her partner unless she has adopted the child.




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ICC prosecutor urges calm following Ivory Coast election
Megan McKee on December 3, 2010 8:08 AM ET

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[JURIST] Deputy prosecutor of the International Criminal Court (ICC) [official website] Fatou Bensouda [official profile] on Thursday urged those in the Ivory Coast [JURIST news archive] to refrain from further violence [statement, PDF] after unrest following presidential elections. In the first presidential elections in a decade, presidential challenger Alassane Ouattara was named the victor [Reuters report], but incumbent President Laurent Gbagbo [BBC profile] has called the results fraudulent, and the results have now been invalidated by the Constitutional Council. In 2003, the Ivory Coast accepted the jurisdiction of the ICC for crimes committed on its territory. Accordingly, Bensouda stated:
I encourage the political leaders to call on their supporters and fellow citizens to show restraint and avoid unrest. I invite the Ivorian authorities to investigate criminal incidents that have already occurred and to do everything possible to deter future ones. All reported acts of violence will be closely scrutinized by the Office.
There have been reports of violence in parts of the west and north, and the country has closed its borders and suspended foreign media.

In February, Gbagbo dissolved [JURIST report] the country's parliament and electoral commission based on allegations of voter fraud in the long delayed presidential elections. On disbanding the government, Gbagbo charged Prime Minister Guillaume Soro [BBC profile] with creation of new government and new election format. Gbagbo had accused Beugre Mambe, the head of the independent electoral commission, of fraud by attempting to register more than 400,000 whom Gbagbo considers to be foreigners. Opposition parties such as the Ivory Coast Democratic Party (PDCI) [party website, in French] and Republican Gathering Party (RDR) [party website, in French] said that most of those voters are ethnic groups in the north of the country, who would likely have voted against Gbagbo. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office through delaying six successive elections.




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Federal appeals judge declines to recuse himself from Proposition 8 case
Drew Singer on December 2, 2010 2:35 PM ET

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[JURIST] Judge Stephen Reinhardt [FJC profile] of the US Court of Appeals for the Ninth Circuit [official website] on Thursday denied a motion [texts, PDF] to recuse himself from the three-judge panel that will hear arguments on Proposition 8 [text, PDF], California's same-sex marriage ban. Proposition 8 supporters had sought Reinhardt's disqualification because of his wife's role as executive director of the American Civil Liberties Union (ACLU) [advocacy website] for Southern California, which has been involved in the Proposition 8 battle both publicly and in a private consulting capacity. The motion argued that 28 USC § 455 [text] requires Reinhardt to step down, even if he does not feel or act with a bias. Reinhardt denied the motion, writing, "I am certain that "a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned," noting that he has recused himself in other cases "when doing so was warranted by the circumstances." The Proposition 8 supporters do not plan to appeal [AP report]. Arguments are scheduled for Monday.

A federal judge struck down Proposition 8 [JURIST report in August. In October, lawyers representing the city of San Francisco submitted a brief [text, PDF] arguing that Proposition 8 is irrational under California state law [JURIST report]. In September, officials in Imperial County, California, also submitted a brief [JURIST report] appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief [JURIST report] seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District [official website] ruled [JURIST report] that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown [official websites] is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.




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Ohio Supreme Court rejects challenge to lethal injection
Sarah Posner on December 2, 2010 2:02 PM ET

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[JURIST] The Ohio Supreme Court [official website] on Thursday rejected [opinion, PDF] a challenge to the lethal injection method of execution. In a split 5-2 decision, the court held that there is no basis under Ohio law for litigating the issue of whether the lethal injection process is constitutional. The question was referred to the high court by the US District Court for the Northern District of Ohio [official website] in the case of condemned prisoner Michael Scott. Scott, who was sentenced to death for killing two men in 1999, went before the court to challenge the use of lethal injection for his execution. The court found:
Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio's lethal-injection protocol, we must answer the certified question as follows: There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees ... or under Ohio law.
The court said it would not hear further cases regarding lethal injection until the Ohio General Assembly [official website] explicitly expanded state review of death penalty cases.

Ohio's newly adopted lethal injection method has faced numerous challenges, with one case reaching the US Supreme Court [official website, JURIST news archive]. In March, the Supreme Court refused [JURIST report] to stay the execution of an Ohio inmate challenging the state's new single-drug execution protocol, adopted [JURIST report] last November. Ohio conducted its first execution [JURIST report] using the new procedure in December. The change in procedure came after the state undertook a review [JURIST report] of its lethal injection practices in September 2009, following the planned execution of inmate Romell Broom failed when a suitable vein for the drugs' administration could not be found.




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ICC urges Central African Republic to arrest al-Bashir
Erin Bock on December 2, 2010 11:55 AM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Wednesday issued an order [text, in French, PDF; press release] requesting that the Central African Republic take steps to arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] and transfer him to the court if he should enter the country for its independence celebrations. As a party to the ICC's Rome Statute [materials], the country is obligated to execute al-Bashir's arrest warrant. However, reports now indicate that al-Bashir has canceled his trip to the Central African Republic [NYT report] as well as another scheduled trip to Libya for an African-European summit as a result of the order.

Other African countries that are state parties to the Rome Statute have come under fire for allowing al-Bashir to attend events in their countries without arrest. In August, Kenya welcomed al-Bashir to a celebration for the country's adoption of a new constitution [JURIST report]. The ICC reported Kenya [JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute as a result of the country's failure to arrest al-Bashir. Former UN secretary-general Kofi Annan [official profile; JURIST news archive] urged Kenya to reaffirm its commitment to the ICC [JURIST report]. The ICC also reported Chad [decision, PDF] for failing to arrest al-Bashir when he visited the country in July. Earlier in July, the ICC charged al-Bashir [JURIST report] with three counts of genocide [warrant, PDF] in relation to the Darfur conflict [BBC backgrounder; JURIST news archive]. These charges were added to the seven counts of war crimes and crimes against humanity already filed against Bashir [JURIST report] in March 2009.




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US soldier pleads guilty to firing on unarmed Afghan civilians
Aman Kakar on December 2, 2010 11:55 AM ET

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[JURIST] Staff Sergeant Robert Stevens pleaded guilty on Wednesday to shooting two unarmed Afghan farmers at a trial held at Joint Base Lewis-McChord [official website]. Stevens pleaded guilty [Reuters report] to aggravated assault with a dangerous weapon, wrongfully tossing a grenade out of his vehicle, making false statements to military investigators and dereliction of duty. He did not plead guilty to a fifth charge of conspiracy to commit assault. Military prosecutors originally sought a prison term of 18 months, but Stevens stuck a deal with the military prosecutors to testify against other soldiers accused of terrorizing civilians. Stevens stated that he and the other soldiers acted on orders from a squad leader [BBC report]. The charges against Stevens stem from a probe into the 5th Stryker Brigade. Five of the twelve 12 involved in the probe are accused of premeditated murder. Stevens will serve nine months at a military brig on his home base. He will be allowed to stay in the military, but he will be demoted to E-1 private and forfeit his pay while in prison.

The probe into the 5th Stryker Brigade has led to charges against several soldiers. On Monday, the US Army ordered a court-martial [JURIST report] for Staff Sgt. David Bram. Bram is accused of severely beating an Army private in his unit to keep him from informing about alleged drug abuse within the unit. In June, the US Army charged [JURIST report] Specialist Jeremy Morlock with three counts of premeditated murder and one count of assault in the death of three Afghan civilians. The Army announced in May that its Criminal Investigation Command was opening an investigation into the civilian deaths [JURIST report] 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 2009, 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 2009.




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Ontario court extends stay allowing enforcement of prostitution laws
Maureen Cosgrove on December 2, 2010 11:39 AM ET

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[JURIST] The Ontario Court of Appeal [official website] on Thursday ruled [opinion, PDF] that several prostitution-related laws struck down by the Ontario Superior Court of Justice (OSCJ) [official website] would remain in effect until April 29, pending an appeal. Justice Marc Rosenberg issued an extension of the stay requested by lawyers for the federal and Ontario governments to preserve the provisions that were invalidated by the lower court while the appeal process continues. The OSCJ ruled [JURIST report] in September that provisions § 210, § 212 and § 213 of the Canadian Criminal Code [texts], which prohibit the keeping of a "common bawdy house," engaging in communications for the purpose of soliciting sex and living "on the avails" of the sex trade, were a violation of the Canadian Charter of Rights and Freedoms [text]. The government argued that the judgment should be stayed until the court could conduct a full review of the decision, while the party challenging the laws argued that the stay would "perpetuate the law's contribution to violence against a vulnerable population." Rosenberg applied the RJR-MacDonald Inc. v. Canada test for granting a stay pending appeal, which requires the court to balance convenience and public interest considerations of the issue. He concluded that it is in the public interest that the judgment be stayed for a relatively short period to permit appellate review of the decision.

Although prostitution is legal in Canada, virtually all of the acts ancillary to exchanging sex for money are not. In 2007, the Sex Professionals of Canada [advocacy website] initiated an application with the OSCJ [JURIST report] challenging the three provisions overturned in September's ruling on the grounds that they are inconsistent with the Charter. The challenge came on the heels of the trial of Robert Pickton [CBC case backgrounder], who was accused of murdering 26 women [indictment text], mostly prostitutes, in the Vancouver area in the 1990s. Pickton was convicted of six counts of murder [Globe and Mail report] in late 2007.




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FCC proposes new rules for Internet regulation
Andrea Bottorff on December 2, 2010 11:17 AM ET

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[JURIST] The Federal Communications Commission (FCC) [official website; JURIST news archive] on Wednesday proposed new rules [text, PDF] for promoting openness on the Internet. The proposed regulations, if adopted by Congress, would be the first open Internet rules in the nation. The proposal would require transparency of Internet broadband networks to help consumers make better decisions about services, preserve open access to all lawful Internet content and protect freedom of speech in the "marketplace of ideas" online. FCC Chairman Julius Genachowski [official profile] stressed the potential impact of the plan:
This framework, if adopted later this month, would advance a set of core goals: It would ensure that the Internet remains a powerful platform for innovation and job creation; it would empower consumers and entrepreneurs; it would protect free expression; it would increase certainty in the marketplace, and spur investment both at the edge and in the core of our broadband networks.
The plans also set a national goal for achieving universal high-speed Internet in the near future. Telecommunications companies may oppose [Reuters report] the new rules, having previously questioned the scope of the FCC's power in regulating the Internet. The FCC will vote on the proposal on December 21.

The FCC has been trying to exert more control over Internet regulation. In July, US Senator Jim DeMint (R-SC) [official website] introduced legislation [text, PDF; JURIST report] intended to block the FCC from implementing its National Broadband Plan [official website; materials]. The Freedom for Consumer Choice Act would remove the FCC's ability to declare the actions of a communications provider illegal unless there was a clear showing that the practice causes harm to consumers and will not be corrected by market forces. A month earlier, the FCC opened a new proceeding [JURIST report] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. A previous court ruling [JURIST report] found that the FCC lacks the power to enforce net neutrality [JURIST news archive]. Net neutrality, which is unanimously supported [JURIST report] by the FCC's commissioners, is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information. 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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UK proposes law limiting arrests under universal jurisdiction
Jay Carmella on December 2, 2010 9:02 AM ET

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[JURIST] The UK Parliament [official website] published legislation on Wednesday that would provide visiting foreign officials with more protection from being arrested on war crimes charges while visiting the UK. The Police Reform and Social Responsibility Bill [materials, text] would amend the current procedures under which victims of an alleged war crime can receive an arrest warrant under the UK universal jurisdiction [AI backgrounder; JURIST news archive] laws. The bill would remove the exclusive power of granting arrest warrants from local magistrates, requiring that all such warrants receive approval from the Director of Public Prosecutions (DPP) [official profile]. The amendment is seen as a move by the UK government to improve relations with Israel after several Israeli government officials were forced to cancel [JURIST report] a trip to the UK earlier this year out of fears of being arrested. The bill states:
Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offense to which this subsection applies, no warrant shall be issued under this section without the consent of the Director of Public Prosecutions. ... Subsection (4A) applies to (a) a qualifying offense which is alleged to have been committed outside the United Kingdom, or (b) an ancillary offense relating to a qualifying offense where it is alleged that the qualifying offense was, or would have been, committed outside the United Kingdom.
Advocacy groups believe that the amendment makes the UK look soft on crime. [Guardianreport] Amnesty International [advocacy website] was particularly critical of the bill, calling it a dangerous and unnecessary change [press release].

UK officials had promised Israel that a change in the law was coming for some time. Former UK attorney general Patricia Janet Scotland gave a speech early this year at the Hebrew University of Jerusalem, stating that UK officials were working to resolve the issue [press release] and protect senior officials traveling to the UK. Last December, former Israeli foreign minister Tzipi Livni [official website, in Hebrew] canceled a UK trip [JURIST report] after a British magistrate court issued, and later revoked, an arrest warrant for her on war crimes charges relating to Israel's Gaza offensive [JURIST news archive]. In October 2009, Vice Prime Minister Moshe Yaalon [official profile] called off [JURIST report] a scheduled trip to the UK after legal advisers from the Israeli Ministry of Foreign Affairs [official website] said that he may be arrested over his involvement in a 2002 airstrike that killed a Hamas leader and 14 civilians. In September, Israel called for an end [JURIST report] to the UN Human Rights Council (UNHRC) [official website] investigation into Israeli actions during the 2008-2009 Gaza campaign.




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Illinois legislature approves same-sex civil unions
Ashley Hileman on December 1, 2010 2:59 PM ET

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[JURIST] The Illinois Senate [official website] on Wednesday voted 32-24 in favor of a bill [SB 1716 materials] legalizing same-sex civil unions [JURIST news archive]. The vote comes a day after the Illinois House of Representatives [official website] voted 62-51 in favor of the bill, which will now go to Governor Pat Quinn (D) [official website] for his signature. Quinn is expected to sign the bill [Chicago Sun-Times report]. The legislation, entitled the "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." Additionally, it would allow religious institutions within the state to choose whether to observe or officiate the union. If signed by Quinn, the legislation will take effect in July 2011. Opponents have cited the fear that its passage is one step closer to the legalization of same-sex marriages [JURIST news archive], which remains a hotly debated issue throughout the US.

In September, 13 state attorneys general joined in an amicus curiae brief [JURIST report] urging the US Court of Appeals for the Ninth Circuit to overturn a federal district court decision [JURIST report] striking down California's ban on same-sex marriage. The brief argued that the district court exceeded its authority because a federal court cannot "reorder this foundational legal and social institution." In July, Hawaii Governor Linda Lingle (R) [official website] vetoed a bill [JURIST report] that would have allowed same-sex civil unions. In contrast, several jurisdictions in the US have legalized same-sex marriage. In March, DC became the sixth US jurisdiction to allow same-sex marriages, joining Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports].




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Supreme Court hears arguments on Freedom of Information Act
Jaclyn Belczyk on December 1, 2010 2:36 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 Milner v. Department of the Navy [oral arguments transcript, PDF] on the ability of the government to withhold information under the Freedom of Information Act (FOIA) [text]. The issue is whether 5 USC § 552(b)(2) (Exemption 2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others. Petitioner Glen Scott Milner filed two FOIA requests for information about a US Navy magazine near his home, but the Navy withheld certain documents under Exemption 2. The US Court of Appeals found [opinion, PDF] in favor of the Navy, ruling that Exemption 2 encompasses two exemptions—the "Low 2" exemption, which covers ordinary employment matters, and the "High 2" exemption, which covers materials whose "disclosure may risk circumvention of agency regulation." Counsel for the petitioner argued four main points:
First, the plain language of Exemption 2 dictates an extremely narrow category of materials, those related solely to internal personnel policies and rules. Second, even if you look beyond the plain language and look to the legislative history, the legislative history is focused, and the additional legislative history from the House is focused, only on law enforcement or investigatory materials, items that were covered through the 1986 amendments to FOIA, making any additional judicial High 2 unnecessary. The third point: Because of FOIA's purpose, if you find that the language, the plain language, is not clear or if you find that the legislative history isn't sufficient, then the focus must be on an interpretation that supports disclosure, not secrecy. And finally, Congress in enacting FOIA conducted the balancing. It reserved for it, itself, the authority to add to or expand FOIA through Exemption 3. It did not leave agency discretion available for the agencies to decide what documents they can provide or not.
Counsel for the respondent argued that "[p]etitioner has asked this Court to disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies and the courts since the D.C. Circuit's en banc decision in Crooker."

Also Wednesday, the court heard arguments in Virginia Office for Protection and Advocacy v. Stewart [oral arguments transcript, PDF; JURIST report] on whether the Eleventh Amendment [text] prevents an independent state agency from bringing an action in federal court against state officials to remedy a violation of federal law. The state of Virginia participates in a federal program designed to detect abuse and neglect at state-run medical facilities. The petitioner is the state agency given oversight over the medical facilities and is seeking access to records relevant to the deaths of two individuals who were residents of the state-run facilities. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that the suit by the petitioner was barred under the Eleventh Amendment and did not fall within the Ex parte Young [opinion text] doctrine.




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Federal judge dismisses health care lawsuit
LaToya Sawyer on December 1, 2010 1:44 PM ET

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[JURIST] A judge for the US District Court for the Western District of Virginia [official website] on Tuesday dismissed [opinion, PDF] a lawsuit challenging a provision of the health care reform law [HR 3590 text; JURIST news archive] requiring all individuals to maintain health insurance. The lawsuit, filed by Liberty University [academic website], alleged that Congress had exceeded its constitutional powers by mandating that employers provide health insurance or face financial penalties, requiring individuals to purchase health insurance, and that the law violates the university's religious beliefs because the penalties could be used to fund abortions [JURIST news archive]. Judge Norman Moon, citing a similar ruling [JURIST report] in a Michigan federal court, found that the mandate provisions were constitutional under the Commerce Clause [Cornell LII backgrounder]. Concerning the second issue, Moon ruled that the plaintiffs had not raised a plausible claim that the law is a burden to religious practices.
[Plaintiffs] fail to allege how any payments required under the Act, whether fines, fees, taxes, or the cost of the policy, would be used to fund abortion. Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered. Furthermore, at least one plan that does not cover non-excepted abortion services will be offered for enrollment through each of the state health benefit exchanges, as required by the Act. Moreover, the Act specifically allows plans in the exchanges to decline to cover all abortion services whatsoever, including excepted abortion services.
Liberty University will appeal the decision immediately to the US Court of Appeals for the Fourth Circuit [official website].

The health care reform law is the subject of numerous legal challenges across the country. In October, a federal judge in Florida denied a motion to dismiss [JURIST report] a lawsuit alleging violations of Article I and the Tenth Amendment of the US Constitution [text], committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states. In August, a federal judge allowed a similar lawsuit filed in Virginia to proceed on narrow grounds [opinion, PDF; JURIST report], addressing only subject matter jurisdiction [Cornell LII backgrounder] and the legal sufficiency of the complaint.




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France court sentences Basque separatist leader in absentia
Sarah Miley on December 1, 2010 1:43 PM ET

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[JURIST] A French appeals court on Wednesday sentenced former Basque separatist leader, Jose Antonio Urrutikoetxea, to seven years in prison for association with a terrorist organization. Urrutikoetxea is a former member of the Basque regional parliament and led the ETA [GlobalSecurity backgrounder; JURIST news archive] until 2006. He was convicted and sentenced in absentia [UPI report] by the court after his fingerprints were found in ETA apartments and on a vehicle in France. Urrutikoetxea was sentenced to five years [RFI report] in his original trial. The appeals court maintained the warrant for his arrest, and he is to be detained upon entering any French territory.

Recent news reports form Spain have stated that Urrutikoetxea is seeking to regain his leadership in the ETA in the upcoming weeks. He has stated that he is willing to talk with Spanish authorities and has been in communication with Arnaldo Otegi, a former leader of Batasuna [BBC backgrounder; JURIST news archive], the political wing of ETA. In March, the Spanish National Court [official website, in Spanish] sentenced [JURIST report] Otegi to two years in prison for promoting terrorism. The court held that comments made by Ortegi in a 2005 speech praised the terrorist acts committed by other ETA members. Otegi compared his imprisoned associates to South African leader Nelson Mandela [ANC backgrounder]. The court criticized the comparison because, unlike the ETA, which is blamed for more than 800 deaths, Mandela was nonviolent. The court also disqualified Otegi from holding public office for 16 years. Otegi faces additional charges that could result in up to 30 years in prison.




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Federal judge orders destruction of genetically-engineered crop
Sarah Miley on December 1, 2010 12:42 PM ET

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[JURIST] A federal judge on Tuesday ordered [judgment, PDF] the destruction of a crop of genetically-engineered (GE) sugar beets because of the potential harmful effect the plants may have on surrounding flora, the first such order to be issued in the US. The suit was filed in September by Earthjustice and the Center for Food Safety [advocacy websites] on behalf of a coalition of farmers, consumers,and conservation groups after the US Department of Agriculture (USDA) [official website] revealed that it allowed the crop to be planted without the environmental review required under the National Environmental Policy Act (NEPA) [EPA materials]. Judge Jeffrey White of the US District Court for the Northern District of California [official website] held that allowing the crop to stay in the ground would cause irreparable harm due to insufficient containment and cross-contamination. The sugar beets in question are one of several "Round-up Ready" crops genetically-engineered by Monsanto [official website] to be resistant to herbicide. The creation of these crops has lead to greater use of herbicide [press release] and the creation of herbicide-resistant weeds through cross-contamination. Addressing this issue, White noted that "farmers and consumers would likely suffer harm from cross-contamination" between GE sugar beets and non-GE crops, and, therefore, injunctive relief was required. White delayed implementation of the order until December 7 to allow time for an appeal.

Monsanto escaped an injunction [JURIST report] in a similar case decided in June by the US Supreme Court [official website; JURIST news archive]. The case arose over an injunction against the planting of Monsanto's "Roundup Ready alfalfa," pending an environmental impact statement (EIS) under NEPA. The US Court of Appeals for the Ninth Circuit had 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. The test requires the plaintiff has suffered an irreparable injury, adequate alternative remedies are not available, a remedy of equity is warranted and it serves the public interest. Alito concluded that the respondent plaintiffs were unable to show that a partial deregulation would pose any appreciable risk of environmental harm if the scope of the regulation is sufficiently limited.




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Spain authorities arrest Mumbai terror attack suspects
Andrea Bottorff on December 1, 2010 11:49 AM ET

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[JURIST] Spanish authorities announced Wednesday that they have arrested seven men in Barcelona suspected of aiding in the 2008 Mumbai terror attacks [BBC backgrounder; JURIST news archive] that killed 166. Spain's Ministry of the Interior [official website, in Spanish] confirmed [news release, PDF, in Spanish] the arrests, as well as three additional arrests in Thailand. The seven suspects in Barcelona, six Pakistanis and one Nigerian, are accused of providing stolen passports [El Mundo report, in Spanish] to the Pakistani militant group Lashkar-e-Taiba (LeT) [CFR backgrounder], which allegedly coordinated the attacks. The men are suspected of stealing passports and other identification documents belonging to male tourists between the ages of 20 and 30, then sending the documents to Thailand where they would be forged and then forwarded to terrorist groups. The Spanish National Police [official website, in Spanish] spent over a year investigating the movement of stolen passports from Spain to Thailand and cooperated with international police organizations in uncovering the terrorist cell.

Suspects connected to the Mumbai terror attacks continue to face arrest and prosecution. India's National Investigation Agency (NIA) [official website] announced [press release, PDF; JURIST report] in October that it has secured INTERPOL [official website] red notices [official backgrounder] for five Pakistani citizens, including two military officials, for their suspected involvement in the attacks. A month earlier, the Bombay High Court [official website] allowed an appeal by Mohammad Ajmal Amir Kasab [NDTV profile], the lone gunman to survive the three-day siege of Mumbai. Kasab, a Pakistani national, filed the appeal in June after he was convicted in May for his role in the terrorist attack and sentenced to death after the prosecution sought the death penalty [JURIST reports]. Two alleged Indian accomplices tried with Kasab were acquitted on all charges of helping to plan the attacks.




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Rights group urges Indonesia to repeal laws violating human rights
Andrea Bottorff on December 1, 2010 10:51 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the Indonesian government to repeal two Sharia laws [report materials; press release] that the group says violate human rights and international treaties. The laws, local to the Aceh province, require strict Islamic dress in public and prohibit unmarried men and women from being alone together. The report does not criticize all Islamic law:
Human Rights Watch takes no position on Sharia law or on provisions that regulate the internal workings of Islam. We are concerned, however, that two of the laws—one prohibiting unmarried individuals of different sexes from being together in certain circumstances, the other imposing public dress requirements on Muslims—violate Indonesia's constitutional protections for basic rights as well as international human rights law which Indonesia has accepted as legally binding.
HRW claims that the laws are applied unfairly, targeting mainly women and the poor, and impose punishments that are too severe. The group also argues that the laws violate international treaties, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) [texts] and the Convention on the Rights of the Child (CRC) [official website].

Human rights groups that have been pushing for reform in Indonesia. In October, the Indonesian Constitutional Court [official website, in Bahasa] overturned [press release, in Bahasa; JURIST report] a law that has allowed the Indonesian government to ban books it deemed controversial for nearly 50 years. The court found [Jakarta Post report] that giving the Attorney General [official website, in Bahasa] the authority to ban books violated the Indonesian Constitution [text] by denying basic human rights without due process of the law. In June, HRW urged [JURIST report] the Indonesian government to release secession activists and adhere to international standards of free speech. In April, the Constitutional Court upheld [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. The court rejected the legal challenge raised by a coalition of human rights groups and social activists supporting the Wahid Organization, a civil organization that advocates for religious pluralism in Indonesia.




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US House approves minority farmer settlements
Ann Riley on December 1, 2010 10:39 AM ET

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[JURIST] The US House of Representatives [official website] on Tuesday voted 256-152 to authorize 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. Elouise Cobell, the lead plaintiff in the Indian Trust class action lawsuit, praised [press release] Tuesday's vote, saying:
By Congress placing a seal of approval on this settlement, a monumental step has been taken to remove a stain on our national honor, and create a better future for Indians as our government begins to make some amends for grave past injustices. This unprecedented Congressional action paves the way for a brighter and better relationship with government. There is still much to be done in trust reform and improving trustee performance by the Department of Interior, but this huge step makes those other steps possible. While the money is not as much as we believe we are entitled to...the settlement will be recognized by Native People as an acknowledgment by the federal government that it wronged them by its mismanagement of Indian money and Indian lands.
The House has twice approved the settlements, which have been held up in the US Senate [official website] until being approved [JURIST report] last week. President Barack Obama has stated his intent to sign the bill into law [press release].

In October, 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. 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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DOD concludes little negative impact to repealing 'Don't Ask Don't Tell'
Ann Riley on December 1, 2010 9:08 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] on Tuesday released an extensive report [text, PDF] concluding that the repeal of the military's "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy would only minimally effect military effectiveness, soldier retention and family readiness. The Pentagon found that the repeal of DADT would likely bring about some limited and isolated disruption, but, with proper implementation, the risk to overall military readiness is extremely low [press release]. The DOD also released a Support Plan for Implementation [text, PDF], laying out the Comprehensive Review Working Group's recommendations to proceed with the repeal in a form similar to a military operations order. If Congress repeals DADT, the plan suggests a phase-out of DADT [press release] for the military to follow. Defense Secretary Robert Gates stated [press release; press briefing video] that he was "determined to see that if the law is repealed," the changes would be implemented in a way to "minimize any negative impact on the morale, cohesion and effectiveness of combat units that are deployed, or about to deploy to the front lines." President Barack Obama endorsed the report [press release] and called on the Senate to repeal the law by the end of this year:
Today's report confirms that a strong majority of our military men and women and their families-more than two thirds-are prepared to serve alongside Americans who are openly gay and lesbian. This report also confirms that, by every measure-from unit cohesion to recruitment and retention to family readiness-we can transition to a new policy in a responsible manner that ensures our military strength and national security. And for the first time since this law was enacted 17 years ago today, both the Secretary of Defense and the Chairman of the Joint Chiefs of Staff have publicly endorsed ending this 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 the review.

Last week, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military [JURIST report] after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement. In November, 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. 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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