January 2011 Archives


Federal judge finds health care reform act unconstitutional
Megan McKee on January 31, 2011 4:04 PM ET

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[JURIST] A judge for the US District Court for the Northern District of Florida [official website] on Monday struck down [opinion, PDF] the health care reform law [HR 3590 text; JURIST news archive] as unconstitutional. The lawsuit was joined by 26 states and the National Federation of Independent Businesses (NFIB) [association website] and was filed [JURIST report] last March. The suit challenged the constitutionality of the health care reform law and sought an injunction and declaratory relief. Judge Roger Vinson held that requiring all Americans over the age of 18 to have health insurance violated the Constitution by exceeding Congress' Commerce Clause [Cornell LII backgrounder] power:
I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.
Vinson found that the individual mandate is "unconstitutional and not severable," declaring the entire act void. The decision may be appealed to the US Court of Appeals for the Eleventh Circuit [official website].

The health care reform law is the subject of numerous legal challenges across the country. A Virginia appeals court is scheduled to hear challenges to two conflicting lower-court rulings in May—one upholding the legislation and the other invalidating part of it. In December, a judge for the US District Court for the Eastern District of Virginia [official website] ruled that the individual mandate provision is unconstitutional [JURIST report] but left the remainder of the law intact. Earlier that month, a judge for the US District Court for the Western District of Virginia [official website] dismissed [JURIST report] a lawsuit challenging a provision of the health care reform law. In October, 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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Google reaches agreement with states over privacy breach
LaToya Sawyer on January 31, 2011 3:10 PM ET

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[JURIST] Connecticut Attorney General George Jepsen [official website] announced Friday that he has reached an agreement [press release, PDF] with Google [corporate website; JURIST news archive] to avoid court proceedings over the company's collection of private data from unsecured personal and business Wi-FI networks for its Street View maps [website] service. Connecticut announced in June that it would lead a multi-state investigation [JURIST report] against Google for possible privacy law violations. Under the agreement, Google will not be required to produce the information it collected. Instead, Google must only stipulate [text, PDF] that its Street View cars did collect data that contained data and private information. Jepsen expressed his belief that choosing negotiations over court proceedings is the right course of action for the state:
This is a good result for the people of Connecticut. The stipulation means we can proceed to negotiate a settlement of the critical privacy issues implicated here without the need for a protracted and costly fight in the courts, although we are ready to do so if we are unable to come to a satisfactory agreement through negotiation
In light of Connecticut's investigation, Jepsen has urged Connecticut residents [press release, PDF] to protect their personal and communications data by securing their wireless networks.

In November, the Federal Communications Commissions (FCC) [official website] launched its own investigation [JURIST report] into whether Google's data collecting violated the Communications Act. In October, the Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into the company's internal policies and procedures that led to the breach. Several other countries have also initiated investigations, including Spain, Australia, Canada, the UK and South Korea [JURIST reports].




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Hungary to consult with EU over objections to controversial media law
Megan McKee on January 31, 2011 3:10 PM ET

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[JURIST] Hungarian Deputy Prime Minister Tibor Navracsics indicated Monday that Hungary is willing to consult with the EU over its controversial new media law. In a letter responding to the European Commission's request for more information regarding the law, Navracsics continued to defend the law but said his government would make modifications if it is found to violate EU law. The new law creates the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the new law, the government can fine broadcasters more than 700,000 euros and newspapers and news websites roughly 90,000 euros if their coverage is deemed unbalanced or immoral by the media authority, whose members are all loyal to the ruling Fidesz party [party website, in Hungarian]. Apart from freedom of expression concerns, the law also appears to apply to media companies both inside and outside Hungary, which violates EU regulations, as broadcasters are only to be subject to the rules of the country in which they are established. Communications Chief Zoltan Kovacs told public radio MR1-Kossuth that Hungary's response would address all the commission's concerns and that the government was open to consultation [MR1-Kossuth report, Hungarian] and change if necessary.

Throughout the month of January, the Hungarian government has continued to defend its controversial law in the face of criticism from the Hungarian media and other EU governments. The law officially entered into force earlier in January, and Hungary has said the law conforms to EU norms and contains passages present in similar legislation of other member states. The state secretary for communication, Zoltan Kovacs, has also told national radio that it is unnecessary to change the law [JURIST report]. The Hungarian Parliament [official website, in Hungarian] approved the law [Reuters report] in December, amid protests and criticism.




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Ninth Circuit declines to put 'Don't Ask Don't Tell' appeal on hold
Erin Bock on January 31, 2011 2:54 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday denied [order, PDF] the government's request to put on hold all appeals in Log Cabin Republicans v. USA, a case regarding the constitutionality of the military's "Don't Ask Don't Tell" (DADT) policy [10 USC § 654 text; JURIST news archive]. The government's motion [text, PDF] requested that the court suspend its own appeal of an injunction [JURIST report] issued by the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. In November, the government requested and received a stay [text, PDF; JURIST report] that suspended enforcement of the injunction. The government requested that the appeal be placed on hold in light of the Don't Ask, Don't Tell Repeal Act of 2010 [text and materials], which President Barack Obama signed into law [JURIST report] on December 22. The government argued that moving forward with the appeal would interfere with the repeal schedule that the Act sets in place. In January, the government requested and received a delay in the case's briefing schedule, but Friday's motion reset the schedule. The government's opening brief is now due on February 25. The Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit, stated that it was pleased [press release] with the court's decision:
We are pleased by the Ninth Circuit Court's ruling denying the government's motion to stay its own appeal of a lower court decision declaring 'Don't Ask, Don't Tell' unconstitutional. The government should not have appealed in the first place and has been trying ever since to dealy any decision by the Ninth Circuit. Now, the Justice Department has to file its brief in the appeal in a few weeks and it will be very interesting to see how the government will try to argue, as it must, that DADT is constitutional.
The group stated it had made an offer to delay the appeal while the act is implemented if the government agreed to cease further to discharges under DADT. The group called the government's decision not accept the offer "unfortunate and inexplicable."

The act states that the repeal of DADT will become effective 60 days after the Secretary of Defense [official profile] receives a plan for the repeal's implementation from the Department of Defense [official website] and the plan is approved by Obama, the Secretary of Defense and the chairman of the Joint Cheifs of Staff (JCS) [official website]. Until that time, the current DADT policy is to remain in effect. Officials on Friday outlined the Pentagon's plan to eliminate DADT [WP report] and stated that training will occur in three phases: military chaplains, lawyers and civilian personnel; then commanding officers; then "rank and file" troops. The officials did not state how long training would take, but the various military branches are under orders to submit training plans to Defense Secretary Robert Gates by February 4. Since its enactment in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of DADT.




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Thailand 'red shirts' petition ICC to review violence during Bangkok protests
Ann Riley on January 31, 2011 2:49 PM ET

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[JURIST] Thailand's "red shirt" [BBC profile; JURIST news archive] pro-democracy movement on Monday petitioned [press release] the International Criminal Court (ICC) [official website] to launch a preliminary investigation into whether the government committed crimes against humanity during the Bangkok protests [JURIST news archive] last spring. The application for petition [text, PDF] cites specific evidence developing a substantial basis to show that international crimes of murder, imprisonment and other severe deprivation of physical liberty, other inhumane acts, and persecution were committed in conjunction with the suppression of red shirt protests. Evidence obtained from multiple active-duty officers of the Royal Thai Army [official website, in Thai] recounts the planning and execution of the military response to the red shirts. The application also includes reports from Thai law enforcement officials knowledgeable of the official investigation conducted by the Thai Department of Special Investigations (DSI) into the killings of protesters. Representing the red shirts and the United Front for Democracy against Dictatorship (UDD) [advocacy website], Robert Amsterdam stated:
This case represents a historic opportunity for international justice to confront governments who deploy their militaries to use violence against their own citizens. In light of repeated violent crackdowns throughout Thai history, this legal filing represents the first comprehensive attempt to obtain the facts and evidence of what happened during the 2010 massacres, let alone publish them before the public. What we have exposed is not just a botched security operation, but rather a determined policy of extermination and elimination of the Red Shirt movement by the military. These egregious violations require answers and accountability.
Amsterdam's firm, Amsterdam & Peroff, LLP [law firm website] also represents former Thai prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], a figurehead for the democratic red shirts, who is currently living in exile after being ousted during a 2006 coup [JURIST report]. In August, the Supreme Court of Thailand [GlobaLex backgrounder] denied Thaksin's appeal [JURIST report] contesting the seizure of his assets. In July, the criminal division of Supreme Court issued a new arrest warrant [JURIST report] against him and Thai police recommended terrorism charges [DPA report] against Thaksin and 24 others for their alleged involvement in the Bangkok protests.

In March, the red shirts began protesting the current Thai government [JURIST report] and called for elections. The conflict, leaving more than 80 dead, ended after nearly two months when protesters surrendered to police [JURIST report]. In May, Human Rights Watch (HRW) [advocacywebsite] expressed concern [JURIST report] about the treatment of anti-government protesters detained during the political violence. The group chided the Thai government for enacting an emergency decree giving Thai security forces broad power to arrest individuals without formal charges and hold them in secret detention. Thai Prime Minister Abhisit Vejjajiva [official profile; JURIST news archive] promised an independent investigation [JURIST report] into the clashes between security forces and the red shirts. Abhisit discussed plans for reconciliation aimed at helping the country heal and pledged that due process of law would play an important role in the reconciliation, and that all people would be encouraged to participate in the democratic process. During their protests, the red shirts demanded that Abhisit resign and called for new elections. The Thai government implemented a curfew [JURIST report] in Bangkok and other areas of the country in response to violence that erupted when the leader of the red shirts announced an end to the protests. It was later lifted [JURIST report] in August.




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Cambodia genocide suspects argue for release
Ashley Hileman on January 31, 2011 12:38 PM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] heard arguments Monday from lawyers representing three former Khmer Rouge [BBC backgrounder; JURIST news archive] leaders regarding their clients' continued detention. Nuon Chea [JURIST report], Khieu Samphan [JURIST news archive] and Ieng Thirith [case materials] appeared alongside their legal representatives, contending that, as a result of the court's violation of the rules regarding detention, they should be released until the start of their trial [Phnom Penh Post report], the date of which has not been set but is expected to begin within six months. The three were indicted [JURIST report] in September, and they argue that court rules require a trial to begin within four months of indictment, rendering their continued detainment unlawful. In addition to the alleged rule violation, the lawyers argued that their clients' age and declining health should be taken into consideration, with both Chea and Thirith leaving the courtroom early on account of health conditions. The prosecution, on the other hand, maintains that no rules were broken and that continued detainment is not only lawful but also necessary, citing the possibility of public outrage if the suspects were released. A fourth individual, Ieng Sary [JURIST news archive], was indicted in September as well, but he does not seek release and was absent from the hearing. The court is expected to rule on the request in February.

In October, UN Secretary-General Ban Ki-moon [official website] said that the ECCC will decide whether to prosecute additional Khmer Rouge officers. Ban spoke to reporters after visiting a genocide museum in Phnom Penh and said that the ECCC would decide if there will be more prosecutions as part of an "international judicial process." Beforehand, while speaking in front of the court, Ban called for those responsible to be held accountable [text] for the tragic events that allegedly caused the death of more than two million civilians between 1975 and 1979. Ban also praised [UN News Centre report] the ECCC's work in pursuing justice, even 30 years after the fall of the regime, and asked for the government's "full cooperation" with the tribunal and "complete respect for its judicial independence." Ban's support followed comments by Cambodian Prime Minister Hun Sen [BBC profile], in which Hun Sen said that the Cambodian government will not allow the UN tribunal to continue prosecuting [JURIST report] former Khmer Rouge officials because the cases disturb the country's ongoing peace process. Hun Sen was formerly a Khmer Rouge officer along with many of his closest allies.




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FBI involved in hundreds of legal violations over past decade: report
Zach Zagger on January 31, 2011 10:57 AM ET

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[JURIST] The FBI [official website] reported to a presidential oversight board that between 2001 and 2008 it committed approximately 800 violations of laws, executive orders, or other regulations governing intelligence investigations, according to a report released Monday by the Electronic Frontier Foundation (EFF) [advocacy website]. The report [text] summarizes nearly 2,500 pages of government documents obtained by EFF through Freedom of Information Act (FOIA) [text] litigation. Many of the documents are reports made to the Intelligence Oversight Board (IOB) [official website], an independent agency within the office of the president that oversees the Intelligence Community's compliance with the Constitution and all applicable laws, executive orders, and presidential directives. The report states, "[t]he documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed." According to the documents, the reported violations to the IOB included violations of intelligence procedures governing investigations and abuses of the FBI's National Security Letter authority, and nearly a fifth were violations of the Constitution, Foreign Intelligence Surveillance Act (FISA) [text], or other laws governing criminal investigations. The FBI said the violations were due to technical mistakes [LAT report] and the amount of substantive violations is small.

This is not the first time the FBI has faced allegations of illegal activity in the course of its investigations. Last September, the US Department of Justice (DOJ) Office of the Inspector General (OIG) [official website] released a report [JURIST report] absolving the FBI of charges that agents conducted investigations of domestic groups based on their exercise of First Amendment [text] rights. But the report criticized the FBI for beginning investigations on weak factual predicates, continuing investigations longer than necessary, inappropriately retaining information on file, misclassifying investigations, and probing issues of state, rather than federal, law. Also in 2007, the FBI ignored growing concerns [JURIST report] from its own lawyers and managers about the lawfulness of retrieving thousands of telephone records of US citizens between 2004 to 2006. The DOJ report by Inspector General Glenn Fine [official profile] on Patriot Act investigative practices revealed that the FBI broke and misused laws [JURIST report] in the process of obtaining personal information from telephone companies, Internet service providers, banks, credit bureaus and other business personal records.




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Iraq PM defends ruling placing key institutions under government control
Dwyer Arce on January 31, 2011 10:37 AM ET

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[JURIST] Iraqi Prime Minister Nouri al-Maliki [BBC profile; JURIST news archive] on Sunday defended an Iraqi Supreme Court decision [interview, in Arabic] finding that several independent agencies must be placed under the control of the government. Among the agencies affected are the Central Bank of Iraq, the Supreme Commission of Human Rights, the Independent High Electoral Commission (IHEC), the Integrity Commission [official websites], the Financial Inspection Office, and the Media and Communications Committee. The ruling, handed down two weeks ago, came at the request of Maliki, who had asked the court in December to clarify the government's role in the management of these bodies under the Iraqi Constitution [text; JURIST news archive]. On Sunday, Maliki stated that challenging the ruling would be an impossible effort that would assail the legitimacy of the federal judiciary. The ruling has been criticized by Sinan al-Shebibi, Governor of the Central Bank, who has argued that the decision will subject it to Iraq's international creditors [AFP report]. The decision has also been criticized by a member of the IHEC, who has claimed that it will adversely affect Iraqi democracy [France24 report, in Arabic]. The Council of Representatives, which oversaw the functioning of the Central Bank before the ruling, will hold an inquiry into the decision [Al-Baghdadia report, in Arabic] on Tuesday.

Maliki was recently able to form a coalition government granting him a second term as prime minister following another Supreme Court ruling [JURIST reports] that ordered the parties to form a government nine months after the March parliamentary elections [CEIP backgrounder; JURIST news archive]. In November, Iraqi parliamentary officials unanimously approved the power-sharing agreement whereby Maliki and President Jalal Talabani [BBC profile] will remain in power for an additional term, despite tension over governmental power positions for the country's minority Iraqiya alliance leader, Iyad Allawi [official website; Al Jazeera profile]. According to the basic terms of the deal, a new governmental office, the National Council for Strategic Policies, was created and led by Allawi as a check on the prime minister's power. The new agreement marked a significant step for the Iraqi government after months of political unrest following the elections. Key positions of ministers of defense, intelligence, security and interior remain unfilled following the deal.




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Kazakhstan Constitutional Council rejects referendum to extend presidency
Sarah Paulsworth on January 31, 2011 10:01 AM ET

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[JURIST] Kazakhstan's Constitutional Council [official website, in Kazakh] on Monday rejected a proposed referendum that would have extended the presidency of Nursultan Nazarbayev [official website, in Kazakh; BBC profile] until 2020. According to the council, the proposal, which entailed cancellation of elections [BBC report] scheduled for 2012 and 2017, was inconsistent with the constitution [RFE/RL report]. In an address to citizens on Monday after the council's decision was announced, Nazarbayev said that in lieu of the referendum, which he said would divide society, he is now advocating for snap elections [RFE/RL report, in Kazakh]. Nazarbayev has already expressed his intention to run for president again, and last week said he wants to lead the country as long as his health permits [RIA Novosti report].

The referendum was forwarded [press release, in Kazakh] to Kazakhstan's Constitutional Council after the parliament [official website, in Kazakh] unanimously approved [JURIST report] the proposal on January 14. The parliament's vote overruled Nazarbayev's decision earlier in the month to veto the proposed referendum [Reuters report]. Nazarbayev's current term is set to expire in 2012 [AFP report], but, if the referendum had been been approved, he was poised to achieve a 30-year term in office. Supporters of the referendum said that it was necessary [Interfax report] in order to ensure that Nazarbayev can continue to address issues facing the country. They also indicated that continuity of government was necessary for the country's continued growth. Opponents argued that Nazarbayev's political party was attempting to eliminate any political competition. The Office for Democratic Institutions and Human Rights (ODIHR) [official website] emphasized the need for democratic elections [press release], arguing that the proposed referendum "[did] not offer a genuine choice between political alternatives and would infringe on the opportunity of citizens to hold their representatives accountable and to effectively exercise their right to vote and be elected." In 2007, Nazarbayev approved a constitutional amendment [JURIST report] removing term limits on his own presidency, effectively allowing him to remain president for life.




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Kenya PM calls recent presidential appointments unconstitutional
Drew Singer on January 30, 2011 4:29 PM ET

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[JURIST] Kenyan Prime Minister Raila Odinga [Guardian profile; JURIST news archive] said on Saturday that his country's president violated its new constitution [text, PDF] when he made a series of judicial, financial and legal appointments without consulting him. President Mwai Kibaki [official profile; JURIST news archive] announced on Friday the appointments of chief justice, top prosecutor, attorney general and budget chief. The appointments were made in an effort to increase public confidence [Reuters report] in the judiciary and to pave the way for the possible prosecution of suspects accused of 2007 post-election violence. According to Odinga, the country's new constitution, which was created as part of a power-sharing agreement [JURIST report] reached in 2009 following months of civil unrest, requires presidential appointments to be approved by the prime minister. Odinga indicated that the situation was a major setback to reform [AFP report] that could lead to a legal crisis. He has threatened to block the appointments in court if they are not withdrawn.

Kenya ratified its new constitution [JURIST report] in August, as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority, among which are the creation of a supreme court and senate. The new constitution was approved by popular referendum, which took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST reports] in 2007. The government is now expected to start implementing the new constitution, which could take as long as five years. This document has been received as one of the most significant events in Kenya since its independence.




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AU official accuses ICC chief prosecutor of 'double standards'
Drew Singer on January 30, 2011 1:54 PM ET

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[JURIST] African Union Commission (AUC) [official website] Chairperson Jean Ping [official profile] said on Saturday that International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] is guilty of double standards by targeting citizens of African states for prosecution. The comments come in the wake of a vote by Africa's foreign ministers, who on Friday supported Kenya's bid to defer the trials of numerous suspects who allegedly planned the 2007 post-election violence [Reuters backgrounder]. Ping indicated [Reuters report] that the AUC is not against the ICC, but just Moreno-Ocampo's involvement in it. Kenya awaits an approval from its head of state before it will invoke Article 16 [text], which would allow the country to ask the UN Security Council [official website] to have the case deferred or suspended. Kenya argues that its citizens should not be charged with crimes against humanity when people from other countries, such as Myanmar and Iraq, are not prosecuted by the ICC. Moreno-Ocampo previously rejected such criticism, noting the role of the ICC as a court of last resort for countries unable to prosecute supsects themselves. The Kenyan cases were refered to the ICC after they failed to be prosecuted locally.

Last months, the Kenyan Parliament approved a motion to withdraw the country from the ICC [JURIST report]. The vote came a week after Moreno-Ocampo presented cases against [JURIST report] six individuals believed to be responsible for the 2007 post-election violence that resulted in more than 1,000 deaths in the country. Although the vote was non-binding, it was a victory for the sponsor of the legislation, 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 his opposition to leaving the ICC, stating that the trials will take place at The Hague.




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UN SG rejects calls for Ivory Coast recount
Drew Singer on January 30, 2011 11:33 AM ET

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[JURIST] UN Secretary General Ban Ki-moon [official website, JURIST news archive] on Saturday told [press release] members of the African Union (AU) [official website] that a recount of November's Ivory Coast presidential runoff election results would be a "grave injustice and unfortunate precedent." Speaking before a high level meeting on the situation in the Ivory Coast, Ban reiterated the UN's pledge to help resolve the tense situation in the country which has led to heightened violence and fears that a genocide could occur [JURIST report], as a result outgoing President Laurent Gbagbo [BBC profile] refusing to leave office. The UN, AU and other world powers have recognized the victory of president-elect Alassane Ouattara [NYT profile], but Gbagbo has called for a recount [AFP report]. Ban stressed the need for the international community to remain unified and "stand firm" against Gbagbo's efforts to "hang on to power through the use of force." Ban also said that those responsible for the deaths of more than 260 people since December "must be brought to justice and held responsible for their crimes."

The UN pledged support [JURIST report] for Ouattara in January, committing UN peacekeeping forces to his aid. The UN press release also noted reports of mass graves [Newstime Africa report], and UN High Commissioner for Human Rights Navi Pillay [official profile] warned Gbagbo that he would be held accountable for continued post-election violence carried out in his name. During the violence following the elections, hundreds were arrested and dozens allegedly subjected to torture and ill-treatment. UN officials have pleaded [JURIST report] for all parties to the disputed presidential election to honor the country's commitment to prevent genocide and crimes against humanity under the 2005 World Summit Outcome Document [text, PDF]. The Economic Community of West African States [official website] has also urged [JURIST report] Gbagbo to step down, threatening the use of force if he attempted to maintain power. Gbagbo was elected to a five-year presidential term in 2000, but has managed to stay in office by delaying six successive elections.




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Belarus releases 7 detainees, including presidential candidate
Drew Singer on January 30, 2011 10:28 AM ET

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[JURIST] Belarusian officials on Saturday released seven people, including one presidential candidate, who were taken in to custody [JURIST report] last month following protests surrounding the country's presidential election [press release, in Russian]. The release comes amid speculation that the European Union (EU) [official website] will reimpose a visa ban [RFE report] on Belarusian President Alexander Lukashenko [BBC profile, JURIST news archive] and other government officials in response to their actions following the elections. The US has also indicated they are considering renewing sanctions [Reuters report] against the Belarusian government. Hundreds of protestors, as well as seven presidential candidates, were arrested while protesting the results of the election, which declared incumbent Lukashenko the winner of the presidency for the fourth time with 79.7 percent of the vote. The government previously announced that the activists were being charged with organizing an unsanctioned meeting, a charge carrying a possible penalty of up to 15 years in prison. The US and EU [press releases] have led an international condemnation [AFP report] of the actions by the Belarusian police and have also questioned the legitimacy of the election results. The Belarusian KGB [official website, in Belarusian] announced the release of former presidential candidate Vladimir Neklyayev citing good behavior, but also noted that Neklyayev will remain under house arrest. EU officials are expected to vote on reimposing the ban on visas on Monday. The previous ban on visas was lifted in 2008 in order to encourage reform within the country.

Hundreds of activists were also 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 has historically criticized Belarus' human rights record [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 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 in Minsk to protest the presidency of Lukashenko. An opposition activist who was critical of Lukashenko during his 2006 presidential campaign 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.




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Arizona legislature introduces bills challenging birthright citizenship
Maureen Cosgrove on January 29, 2011 2:18 PM ET

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[JURIST] The Arizona House of Representatives [official website] and Senate [official website] on Thursday introduced bills challenging the right to US citizenship for the children of legal and illegal immigrants born in the state. The proposed legislation, House Bill 2562 [text, PDF] and Senate Bill 1308 [text, PDF], are proposals to amend Title 36, Chapter 3 of the Arizona Revised Statutes [materials]. The Arizona legislature, in introducing these bills, seeks a legal review [Reuters report] of the Fourteenth Amendment [text] of the US Constitution, which grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The bills aim to guarantee citizenship only to children born of at least one parent who is a legal citizen, legal immigrant, active member of the Armed Forces or a naturalized legal citizen, and would seek Congressional permission to issue two separate type of birth certificates, based on whether the child meets the new citizenship requirements or not. Opponents to the bill argue that creating two separate and distinct birth certificates will create classes of people [Arizona Republic report], and brings to mind the policy of "separate but equal." Legislators are likely to vote on the bills in the next few weeks.

In the past year, Arizona has found itself at the center of the immigration debate in the United States. In October, a judge for the US District Court in the District of Arizona denied [order, PDF; JURIST report] motions to dismiss a class action lawsuit [JURIST report] challenging the constitutionality of the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. Portions of SB 1070 were preliminarily enjoined [JURIST report] in July 2010, at the request of the US Department of Justice, which filed its suit challenging the constitutionality of the law [JURIST report] earlier that month.




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US demands release of diplomat arrested in death of two Pakistanis
Megan McKee on January 29, 2011 10:15 AM ET

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[JURIST] The US Embassy in Pakistan on Saturday demanded [press release] the prompt release of a US man who it believes has been illegally arrested in connection with the shooting deaths of two Pakistanis, arguing the man qualifies for diplomatic immunity. On Thursday, the diplomat was reportedly confronted by two armed men on motorcycles, who minutes earlier had robbed money and valuables at gunpoint from a Pakistani citizen in the same area. The embassy has said the man acted in self-defense when he shot and killed the two armed men. After being arrested, the man identified himself to police as a diplomat and cited his right to immunity under the Vienna Convention on Diplomatic Relations [text, PDF]. The US believes that police and senior authorities failed to check his status with appropriate channels, and formally arrested and remanded the diplomat in violation of international norms and the Vienna Convention, to which Pakistan is a signatory.

This dispute strains what are already shaky diplomatic relations [AP report] between the US and Pakistan. Those relations have been strained by a variety of factors, including deaths related to airstrikes within Pakistan [WP report]. As a result of those airstrikes, Pakistan filed a complaint with NATO [JURIST report] in October. Despite the fractured relationship, Pakistan remains one of the key US allies in the Middle East. In September of last year, Pakistani authorities arrested three individuals [JURIST report] linked with Faisal Shahzad [JURIST news archive], the man accused of attempting to detonate a bomb in Times Square.




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Cuban dissident Farinas arrested three times in 48 hours
Megan McKee on January 29, 2011 9:44 AM ET

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[JURIST] Cuban activist and high-profile dissident Guillermo Farinas was imprisoned by Cuban authorities on Friday for the third time in 48 hours. The authorities have told Farinas that he will be jailed [AP report] if he meets with other dissidents in public. Farinas was detained for the first time Wednesday, in his home city of Santa Clara. He was released later that evening, then arrested Thursday and released again Friday morning. By Friday afternoon, he had been picked up a third time, as he defied the prohibition against gathering in public. Farinas, and those he gathered with, wished to place a wreath on a monument to Cuban independence leader Jose Marti [backgrounder, in Spanish] to commemorate the 158th anniversary of his birthday.

In October, the European Parliament [official website] named Farinas [press release; JURIST report] as the recipient of its 2010 Sakharov Prize for Freedom of Thought [official website]. Farinas has undergone multiple hunger strikes in support of political prisoners and to protest conditions in Cuba, and was the publisher of the now-defunct Cubanacan Press, which sought to raise awareness of the former's statuses. Last year, Farinas staged a 135-day hunger strike that helped persuade Cuba to agree to the release of 52 political prisoners [JURIST report] in an arrangement negotiated with the Roman Catholic Church [church website].




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Spain judge seeks US government response to Guantanamo abuse allegations
John Paul Putney on January 28, 2011 4:27 PM ET

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[JURIST] Spanish judge Eloy Velasco on Friday set a March 1 deadline for the US government to indicate whether Guantanamo abuse allegations will be investigated by US lawyers before deciding whether to allow a controversial lawsuit against former Bush administration officials to move forward. The lawsuit, originally filed in 2009 [JURIST report], accuses high profile lawyers including former attorney general Alberto Gonzales [BBC profile], David Addington, William Haynes, Douglas Feith, Jay Bybee and John Yoo [JURIST news archive] of inventing a legal cover for torture at Guantanamo [ABC report, in Spanish]. Judge Velasco provided one final month for the US to respond, noting that previous requests have gone unanswered [EFE report, in Spanish]. The judge also requested evidence that the three former Guantanamo inmates are Spanish citizens [Dow Jones report]. The case, although not the only Guantanamo-related lawsuit in international courts, may further heighten tensions between the US and Spain.

Spanish National Court judges have prosecuted foreign cases aggressively under Spanish laws on the exercise of universal jurisdiction [AI backgrounder; JURIST news archive] amended [JURIST report] by Spain's parliament in November 2009. The law limits the use of universal jurisdiction to offenses committed by or against Spaniards, or where the perpetrators are in Spain. This lawsuit was originally brought before crusading judge Baltasar Garzon [BBC profile; JURIST news archive], who has been known for using universal jurisdiction extensively in the past to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives]. In May, the Spanish General Council of the Judiciary (CGPJ) [official website, in Spanish] voted unanimously to suspend Garzon [JURIST report] for abusing his power by opening an unrelated investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War [LOC backgrounder].




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UN officials urge Egypt to respect rights of protesters
John Paul Putney on January 28, 2011 3:13 PM ET

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[JURIST] UN officials including Secretary-General Ban Ki-moon and High Commissioner for Human Rights, Navi Pillay [official websites], on Friday urged the Egyptian government to exercise restraint [press release] and respect the rights of protesters. Navi Pillay acknowledged reports of tactics including rubber-coated bullets, tear gas, water cannons and batons [press release], and called on the government to investigate the reports of excessive force including civilian deaths. Pillay also pressed the government to lift the emergency law that has been in force for nearly 30 years and restore the use of mobile phones and social networks [Reuters report], stating:
While maintaining rule and order are important, the responsibility of the Government to protect the rights to life, liberty and security is paramount. I call on the Government to take concrete measures to guarantee the rights to freedom of peaceful assembly and expression, including by restoring free use of mobile phones and social networks. ... People must be entitled to express their grievances against violations of their civil and political rights as well as their frustrations at lack of realisation of their economic rights, the right to work and the right to an adequate standard of living.
Shortly after Pillay's comments, Egypt announced a curfew as the Egyptian army took to the streets.

More than 1,000 protesters have been detained [JURIST report] in Egypt as demonstrations against the 30-year reign of President Hosni Mubarak [Al Jazeera profile] entered their third day on Thursday. Meanwhile, Nobel Peace Prize laureate and Egyptian opposition leader Mohamed ElBaradei [Nobel Prize profile] has expressed his willingness to lead a transitional government [BBC report]. Elbaradei, who previously led the International Atomic Energy Agency (IAEA) [official website], has returned to Egypt [BBC report] and is reported to have joined the protests. According to some commentators, the unrest in Egypt is modeled after recent civil unrest in Tunisia that culminated with the resignation of President Zine al-Abidine Ben Ali [JURIST report] earlier this month.




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Russia president signs bill ratifying New START nuclear treaty
Drew Singer on January 28, 2011 2:36 PM ET

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[JURIST] Russian President Dmitri Medvedev [Guardian profile; JURIST news archive] on Friday signed into law a bill that ratifies the New Start treaty [materials, PDF; JURIST news archive], an agreement between Russia and the US intended to reduce nuclear arms in both countries. The Russian Federation Council on Wednesday voted to ratify the treaty [JURIST report]. The upper house of Russia's parliament unanimously supported the measure, which calls for each country to reduce its nuclear arsenal by about 30 percent. Under the new treaty, each country will be allowed to have 1,550 warheads as opposed to the 2,200 allowed under the old Strategic Arms Reduction Treaty [materials] that expired in December 2009. Council-member Viktor Evtukhov [official profile, in Russian] praised [press release, in Russian] the ratification of the treaty stating,
The conclusion of the START treaty is clearly the achievement of national policy. First, the ratification of the treaty will have a positive impact in all areas of bilateral cooperation the signing of START-3 completely draws a line under the Cold War. Secondly, the New START treaty fully meets the interests of Russia, who chose a less costly and more rational approach.
Russia included non-binding language in its ratification [AP report] disapproving of US plans to build a missile defense system in Eastern Europe. Russian Defense Minister Anatoly Serdyukov said that the treaty will not affect Russian plans [RIA Novosti report] to build a missile defense system. The US and Russia are expected to hold a formal ceremony [Reuters report] marking the treaty's ratification next month.

Russia's lower house originally approved the treaty [JURIST report] in December. Earlier that month, the US Senate voted 71-26 [JURIST report] to ratify the treaty. US President Barack Obama and Medvedev signed the treaty [JURIST report] in Prague in April. The agreement, reached [JURIST report] last 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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Wyoming Senate advances amendment banning same-sex marriage
Drew Singer on January 28, 2011 1:44 PM ET

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[JURIST] The Wyoming Senate [official website] on Thursday voted 20-10 [vote details] in favor of Joint Resolution 5 [text, PDF], the first step to a constitutional amendment that would prevent the state from recognizing same-sex marriages [JURIST news archive] from any jurisdiction. The decision, which was split down party lines, will now advance to the state House of Representatives, where it needs a two-thirds vote to succeed. If approved there, it will need to be signed by Governor Matt Mead [official website] and then appear as a referendum item on the 2012 ballot. The House Judiciary Committee on Friday also voted 5-4 [Star-Tribune report] to defeat House Bill 150 [text, PDF], which would have recognized civil unions [JURIST news archive] in the state. Wyoming already has a statutory ban on same-sex marriages and civil unions, but currently recognizes those from other states.

The Wyoming House approved legislation Monday [JURIST report] that would prevent Wyoming from recognizing same-sex marriages and civil unions performed out of state. House Bill 74, Validity of Marriage [text, PDF] was passed by a 32-27 House vote and will now be turned over to the Senate. The act has been described as a backup [Billings Gazette report] in case the constitutional amendment fails, a concern based on the slim vote margin for the House bill. The House has rejected similar legislation [Star-Tribune report] twice in recent years. Opponents of the bill organized an "Equality Rally" in Casper, Wyoming to protest the legislation [Star-Tribune report]. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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DRC war crimes suspect denies allegations at initial ICC appearance
LaToya Sawyer on January 28, 2011 1:04 PM ET

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[JURIST] Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder] leader Callixte Mbarushimana [case materials] made his initial appearance [press release] before the International Criminal Court (ICC) [official website] on Friday and denied the charges against him, which relate to violence in the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] in 2009. The court provided official notice of the charges against Mbarushimana, which include five counts of crimes against humanity and six counts of war crimes including murder, rape, torture, and attacks against the civilian population, and also informed him of his rights under the Rome Statute [text, PDF]. In addition to denying the charges, Mbarushimana stated that he has consistently fought injustice and human exploitation [AP report] and that he strongly condemns attacks on civilians. Mbarushimana was arrested in October by French authorities and transferred to the Hague [JURIST reports] earlier this month on an order issued by the ICC. The ICC order stated that evidence supported the idea that Mbarushimana, in his role as Executive Secretary of the FDLR, "has personally and intentionally contributed to a common plan of conducting attacks against the civilian population in order to create a 'humanitarian catastrophe' and to launch an international campaign to extort concessions of political power for the FDLR." The ICC will hold a confirmation of charges hearing on July 4, 2011 in order to determine whether there is sufficient evidence to establish substantial grounds to believe that Mbarushimana committed each of the crimes charged. If the charges are confirmed, the case will be referred to the Trial Chamber for further proceedings.

In addition to facing allegations relating to violence in the DRC, Mbarushimana has also been linked to the 1994 Rwandan genocide [JURIST news archive]. In December, a French judge charged Mbarushimana [JURIST report] with war crimes and crimes against humanity for his role in the genocide. 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 (ICTR) [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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Myanmar high court dismisses Suu Kyi appeal over party dissolution
Andrea Bottorff on January 28, 2011 10:36 AM ET

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[JURIST] The Myanmar Special Appellant Court dismissed an appeal Friday filed by pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] challenging the government's dissolution of her National League of Democracy (NLD) [party website]. The dismissal effectively exhausts Suu Kyi's ability to appeal and bars her from official political recognition [BBC report] in the country. Earlier this month, the Supreme Court agreed to hear a special appeal [AFP report] from Suu Kyi, despite dismissing the case [JURIST report] twice last year. Suu Kyi sought to reverse the government's decision to formally abolish the party [BBC report] after it had failed to register for elections. A lawyer for NLD said that they have still have one last appeal [Mizzima report] to the Chief Justice of the Supreme Court, but it unclear if the party will make the appeal.

Suu Kyi originally filed the suit in November and April [JURIST reports], but both claims were dismissed. She had asked the court to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also to establish a parliament of lawmakers who won in the 1990 elections. The dissolution of the party was seen as political move by the military government in order to keep the NLD from participating in Myanmar's 2010 elections, the first in 20 years. Suu Kyi was released [JURIST report] following the controversial elections [JURIST report] last November after almost eight years of house arrest. Her release came days after the Myanmar Supreme Court rejected an appeal [JURIST report] challenging the conditions of her house arrest.




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France court upholds same-sex marriage ban
Andrea Bottorff on January 28, 2011 9:35 AM ET

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[JURIST] France's Constitutional Council [official website, in French] on Friday ruled [opinion, text, in French] that the country's same-sex marriage ban [French Civil Code text] does not violate the constitution [text]. The council emphasized it may only interpret existing laws under the constitution, but that the legislature has the power to make new laws allowing gay marriage. A lawyer for the gay couple who brought the complaint said that the issue has been passed to the politicians [AP report], and that he remains optimistic that the government may yet legalize gay marriage. Corinne Cestino and Sophie Hasslauer, who have lived together for 15 years and have four children, sought for the right to marry and challenged the ban in a Reims court, saying it limited their personal freedoms [AFP report]. The Court of Cassation [official website, in French], the country's highest court of appeals, in November ordered the Constitutional Council to rule on the constitutionality [JURIST report] of the law.

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




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Chile orders probe into death of Salvador Allende
Ann Riley on January 28, 2011 8:03 AM ET

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[JURIST] Chile Supreme Court [official website, in Spanish] Judge Sergio Munoz [official profile, in Spanish] on Thursday ordered an investigation into the death of former socialist president Salvador Allende [BBC profile] during the 1973 coup [BBC backgrounder]. Since the coup, Allende's death has been ruled a suicide. The investigation into Allende's death is part of a larger probe into the 1973-1990 military dictatorship [press release, in Spanish] of General Augusto Pinochet [BBC profile; JURIST news archive], who seized power after the coup. Prosecutor Beatriz Padrals will investigate 726 cases [press release, in Spanish] of alleged human rights abuses allegedly committed during the Pinochet-regime. Hundreds of Chilean officials are also under investigation for human rights abuses committed under Pinochet, including the so-called "Caravan of Death" [BBC backgrounder, JURIST news archive] following the coup, the death or disappearance of more than 3,000 people, and 28,000 cases of alleged torture.

Allende, a Marxist, was met with opposition after winning the 1970 elections in Chile from those fearing his presidency would support a pro-Soviet communist government. The 1973 coup, backed by the US [JURIST report], was followed by a 17-year military regime lead by Pinochet. In an extraordinary statement released on his 91st birthday Pinochet publicly assumed "full political responsibility" [JURIST report] for the actions of his military regime. Pinochet nonetheless justified the military coup against Allende that brought him to power as having being necessary to preserve Chile's integrity amid "the continuation and worsening of the worse political and economic crisis than one can remember." Pinochet died [JURIST report] in 2006 at the age of 91 without ever facing trial for multiple human rights abuses and tax evasion charges against him.




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Ukraine prosecutors launch new investigation of ex-PM Tymoshenko
Carrie Schimizzi on January 28, 2011 7:32 AM ET

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[JURIST] Ukrainian prosecutors announced Thursday that they have opened a new criminal investigation [press release, in Ukrainian] of opposition leader and former prime minister Yulia Tymoshenko [personal website; JURIST news archive]. The prosecution's office alleges Tymoshenko, whose government was dissolved in March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian], abused her authority and exceeded her official duties by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up while in office. Ukrainian prosecutors allege the vans were not properly equipped to function as ambulances and that the country suffered USD $67 million in damages as a result. Tymoshenko responded to the allegations calling them a "fabrication" [statement]. On her website, Tymoshenko said the purchase of the medical vans was part of a program to help people in the rural areas of Ukraine where medical centers are sparse:
According to statistics, 60% of people who die in the villages die not because they're deathly ill, but because a doctor can't reach them in time, because there is no transportation in the villages and no way for a doctor or nurse to reach the sick. That's why we used state guarantees to purchase 1,000 vehicles for 3,000 villages that helped save more than 100,000 lives in 2010 alone.
Tymoshenko also accused the Ukrainian government of political repression. If found guilty of the charges, she could face up to 10 years in prison.

This is not the first time the Ukrainian government has investigated Tymoshenko. In December, prosecutors filed criminal charges against her [JURIST report] for allegedly misappropriating state funds during her time in office from 2007-2010. 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. Last 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.




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US soldier charged in civilian deaths accepts plea bargain: report
Daniel Makosky on January 27, 2011 3:28 PM ET

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[JURIST] Specialist Jeremy Morlock has accepted a plea agreement offered by US Army [official website] prosecutors, according to a Washington Post report [text] Wednesday. Under the agreement, Morlock, charged [JURIST report] in June in the deaths of three Afghan civilians in separate incidents between January and May, agreed to offer testimony against 10 fellow defendants in exchange for receiving a maximum sentence of 24 years imprisonment. A military judge is expected to review the agreement at Morlock's court-martial, at which time Morlock's lawyers may request the judge to impose a lesser sentence. The proceedings are scheduled for next month at Morlock's home base, Joint Base Lewis-McChord [official website].

Investigations into Morlock's unit, the 5th Stryker Brigade, have led to charges against several soldiers. Staff Sgt. Robert Stevens pleaded guilty [JURIST report] in December to shooting two unarmed Afghan farmers following a plea agreement that will allow him to remain in the military after serving a nine month sentence and testifying against other soldiers accused of terrifying civilians. Earlier in the week, the US Army had ordered a court-martial [JURIST report] for Staff Sgt. David Bram, who was accused of severely beating an Army private in his unit to keep him from informing about alleged drug abuse within the unit. 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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Botswana appeals court grants water rights to Bushmen
Julia Zebley on January 27, 2011 2:17 PM ET

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[JURIST] The Botswana Court of Appeal [SAFLII database] ruled [judgment, PDF] Thursday that the indigenous Bushmen [National Geographic backgrounder], or San, can drill wells in their village in the Central Kalahari Game Reserve (CKGR) [official website], reversing a lower court ruling [JURIST report]. The court found that the Bushmen have the right to use a previous borehole, that the government must pay the Bushmen's court fees and that the government's treatment toward the Bushmen has been "degrading." Citing the Chapter 34:01 Water Act [text, PDF], the judge wrote:
In my view, it cannot be emphasized strongly enough ... that in Botswana water is at a premium. Lawful occupiers of land such as the appellants must be able to get underground water for domestic purposes, otherwise their occupation would be rendered meaningless. Indeed, I accept that this is the rationale behind s 6 of the Act. Accordingly, I have no hesitation in concluding that the appellants, being the lawful occupiers, do not require a water right for the use of Mothomelo borehole, or indeed any other current or future borehole on land in the CKGR, for domestic purposes.
A spokesperson for the Bushmen stated that they were "very happy" with the decision and hoped that "the government will now treat us with the respect we deserve." Survival International [advocacy website] also released a statement praising the decision [text]. Jeff Ramsay, an official for the Botswana Government Communications and Information System [official website], said the government will respect the decision [AP report].

The Bushmen applied for permission to use a borehole [BBC report], originally dug by diamond company De Beers [corporate website] in the 1980s, as a water well on their ancestral land located in the Kalahari desert. Judge Lashkavinder Walia originally denied [AFP report] the tribe's application, stating that they needed to specify how much water they intended to pump from the borehole in order to comply with water regulations. Tourist areas as well as diamond claims are located within miles of the game reserve, and the closest source of water for the Bushmen is 25 miles from their village. The Bushmen are considered to be the first inhabitants of southern Africa, with ancestors occupying the Kalahari Desert region for 20,000 years. The tribe was evicted from the game reserve from 1997 to 2002 and forced to reside in settlement camps. The Bushmen contended that the eviction was the result of the government attempting to make room for diamond claims and tourist areas, whereas the government cited the Bushmen's negative effect on conservation as the motivation behind the relocation. The borehole was sealed in 2002 in an additional effort to drive the tribe from the land. In 2006, the High Court ruled [JURIST report] that the government's eviction was "unlawful and unconstitutional" and allowed the Bushmen return to the area.




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Federal judge deems financier Stanford incompetent to stand trial
Daniel Makosky on January 27, 2011 12:35 PM ET

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[JURIST] A federal judge on Wednesday declared Allen Stanford [BBC profile; JURIST news archive] incompetent to stand trial in connection with a $7 billion fraud scheme. Judge David Hittner of the US District Court for the Southern District of Texas [official website], who postponed the trial [JURIST report] earlier this month, ordered Stanford to enter detoxification for an addiction to anti-anxiety and anti-depression medications prescribed to him by prison physicians that has rendered him unable to meaningfully contribute to his defense. Hittner also denied a request [Houston Chronicle report] made by Stanford's attorneys to allow him to seek treatment at a private clinic, recommending instead that he be transferred to a federal Bureau of Prisons (BOP) [official website] medical facility. A new trial date has yet to be scheduled, though Hittner advised lawyers for both sides to prepare themselves to proceed.

Stanford is accused of defrauding investors [indictment, PDF; JURIST report] out of $7 billion. Last January, a federal judge ordered that $21.2 million in gold coins and bullion be returned [JURIST report] to more than 200 of Stanford's investors. Weeks earlier, the US Department of Justice [official website] began investigating [JURIST report] political donations and other connections between Stanford and US lawmakers. Stanford donated more than $2.3 million to lawmakers' campaigns and spent more than $5 million in lobbying efforts while allegedly carrying out the fraud. Stanford has denied the charges [JURIST report] against him and was originally set to be released on $500,000 bail until prosecutors successfully appealed the decision. Through three of his investment companies, Stanford allegedly violated the Securities Act of 1933, the Securities Exchange Act of 1934 and the Investment Company Act of 1940 [texts]. He was originally charged [complaint, PDF; JURIST report] in February 2009 with running a fraudulent investment scheme by selling certificates of deposit on the promise of improbably high interest rates.




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Malawi passes law permitting government to ban media outlets
Daniel Richey on January 27, 2011 10:54 AM ET

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Malawian president Bingu wa Mutharika [BBC profile] has signed into law a bill permitting the government to ban media outlets that its information ministry declares contrary to public interest. The new law, which amends the 2009 penal code amendment bill, has already drawn heavy criticism from regional media watchdogs, such as the Media Council of Malawi (MCM) [official website] and the National Media Institute of Southern Africa in Malawi (NAMISA) [official website], which charged that the bill gives political allies of the president unchecked authority to exercise arbitrary regulatory power of the African nation's media. NAMISA has also argued that the law is unconstitutional under Section 36 of the Malawi Constitution [text], which stipulates that "the press shall have the right to report and publish freely, within Malawi and abroad, and to be accorded the fullest possible facilities for access to public information." Free press advocates have asked Mutharika to agree not to use the new authority in an abusive fashion and urged the Malawian Parliament [official website] to refrain from advancing bills that would run counter to the principles of a free democracy.

Mutharika has had a rocky relationship with the press during his time in office. In November 2010, the Malawian government threatened [Nyasa Times report] the publishers of the Malawi Daily Times [official website], Blantyre Newspapers Limited (BNL), with a ban on advertising sales after one of their five publications ran stories covering sex scandals involving national celebrities and socialites. The government had already banned the publication of BNL's Weekend Times, which ran several such stories, for the paper's failure to register with the nation's national archives, a violation that critics charged was a pretext. In August 2010, his administration threatened [Reuters report] to shut down news outlets and refuse aid and donations from foreign organizations and governments after several papers reported on a British study that suggested more than a million people in Malawi were in need of food aid. In July 2009, to the alarm of free pres advocates, Malawi police in the capital of Lilongwe arrested [IFEX report] the editor of privately-owned Zodiak Broadcasting, Gabriel Kamlomo, on charges of causing public panic by broadcasting what police said was untrue information about a murder case. Station representatives told NAMISA that police accused Kamlomo of criticizing police for the lack of an investigation. Kamlomo was acquitted [IFEX report] in December 2010.




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Over 1,000 detained in Egypt amid widespread protests
Sarah Paulsworth on January 27, 2011 10:03 AM ET

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[JURIST] More than 1,000 protesters have been detained in Egypt as demonstrations against the 30-year reign of President Hosni Mubarak [Al Jazeera profile] entered their third day on Thursday. Protests were held Thursday in Egypt's capital Cairo, as well as the city of Suez, and are reportedly spreading across the country [RFE/RL report]. In Suez, police resorted the use of rubber-coated bullets, water cannons and teargas, after protesters burnt down a police post [Al Jazeera report]. On Tuesday, Egypt's Ministry of Interior announced it would no longer tolerate the protests [BBC report], which have resulted in several deaths. Meanwhile, Nobel Peace Prize winner and Egyptian opposition leader Mohamed ElBaradei [Nobel profile] has expressed his willingness to lead a transitional government [BBC report]. Elbaradei, who previously led the UN's International Atomic Energy Agency (IAEA) [offical website], said he was planning to return to Egypt [Bloomberg report] on Thursday to join the protests.

According to some commentators, the unrest in Egypt is modeled after recent civil unrest in Tunisia that culminated with the resignation [JURIST report] of President Zine al-Abidine Ben Ali this month. The Tunisian Constitutional Council, the country's highest legal authority on constitutional issues, declared that the leader of the lower house of parliament, Foued Mebezza, will assume power [AFP report] until elections are held in two months. Controversy marred parliamentary elections that were held in Egypt this past November, as violence accompanied accusations of corruption [JURIST report], fraud and silencing the opposition. Reports surfaced [AP report] of vote buying and the ejection of independent vote monitors from polling locations.




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Federal judge rules Blackwater shooting suit can proceed in state court
Daniel Richey on January 27, 2011 9:12 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of North Carolina [official website] ruled Wednesday that a lawsuit against Blackwater [JURIST news archive], now known as Xe Services [corporate website], can proceed in state court. The suit revolves around a 2007 shooting incident [JURIST news report] in the Nisour Square area of Baghdad that left 17 Iraqi civilians dead. A subsequent FBI [official website] investigation revealed that 14 of the deaths were unjustified acts of excessive force [NYT report]. The lawsuit, the last remaining in relation to the shooting incident, was filed by the families of six victims. In his ruling, Judge Terrence Boyle said that nonresidents lack the right to sue in federal court for injuries sustained outside of the country, but that federal courts are obligated to remand such cases to the state level, where North Carolina law permits such suits.

Foreign governments as well as US courts and agencies continue to scrutinize the role of private security contractors in conflicts abroad as incidents of violence and abuse have raised concerns that the firms operate largely outside of the law. In October, the Afghan government announced that it had disbanded eight private security companies [JURIST report] operating locally and confiscated their weapons pursuant to a decree from President Hamid Karzai [official profile]. In September, a judge in the US District Court for the Eastern District of Virginia [official website] declared a mistrial [JURIST report] in a murder case against two Blackwater defense contractors after the jury failed to reach a verdict following nine hours of deliberation. The defendants were charged with killing two unnamed men in Kabul and argued self-defense. In February, the US Department of Justice (DOJ) [official website] announced that it had launched an investigation [JURIST report] into Blackwater following allegations that the company bribed Iraqi officials with $1 million to allow them to continue operating in the country after the Nisour Square incident. Bribery of foreign officials is a violation of the Foreign Corrupt Practices Act (FCPA) [text, 15 USC § 78dd-1 text].




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Cell phone company sues FCC over net neutrality rules
Drew Singer on January 27, 2011 8:39 AM ET

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[JURIST] MetroPCS [corporate website], the fifth-largest cell phone company in the US, said Tuesday that it has filed an appeal [text, PDF] challenging new net neutrality [JURIST news archive] rules that will allow the government to regulate Internet traffic. Roger Linquist, MetroPCS's president and CEO, said in a statement that his company's reasons to sue were similar [WP report] to Verizon's, which filed a similar suit last week [JURIST report]. Verizon is challenging the regulations, which would prevent Internet providers from selectively blocking web access, saying they "go beyond any authority provided by Congress." The new net neutrality rules were approved last month [JURIST report] by the Federal Communications Commission (FCC) [official website], and the controversy surrounding the regulations suggested legal challenges would be pursued [WSJ report].

The FCC has long been trying to exert more control over Internet regulation. Last year, US Senator Jim DeMint (R-SC) [official website] introduced legislation [text, PDF] 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.




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Investors sue Bank of America subsidiary for fraud
Daniel Makosky on January 26, 2011 2:21 PM ET

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[JURIST] Twelve plaintiffs on Monday combined to file a lawsuit [complaint, PDF] in the New York State Supreme Court [official website] against Countrywide Financial Corporation [NYT backgrounder] alleging widespread fraud that resulted in substantial financial losses. The plaintiffs invested hundreds of millions of dollars with the Bank of America (BOA) [corporate website] subsidiary between 2005 and 2007, believing the purchases of mortgage-backed securities to be "conservative, low-risk investments." The suit claims that Countrywide "recklessly" misrepresented the stability of the investments and failed to adhere to its stated underwriting and credit analysis procedures, leading the credit ratings of many of the securities to fall significantly. The complaint also names several former Countrywide executives as defendants, and seeks compensatory and punitive damages.

BOA has recently been the target of several lawsuits alleging fraud. Arizona Attorney General Terry Goddard filed a lawsuit in mid-December against BOA for misleading customers [JURIST report] in mortgage modification and foreclosure practices. Earlier in the month, the US Securities and Exchange Commission (SEC) [official website] reached a $137 million settlement agreement [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.




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Arizona federal judge declares judicial emergency
Aman Kakar on January 26, 2011 1:13 PM ET

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[JURIST] The US Courts for the Ninth Circuit [official website] announced [press release] on Tuesday that Chief Judge Roslyn Silver of the US District Court of Arizona [official website] has declared a judicial emergency [order; PDF] under the Speedy Trial Act [18 USC § 3161-3174]. Judge Silver's order suspends the time limits set forth in 18 USC § 3161 [text], which require that a federal criminal trial commence 70 days after a complaint or indictment. The judicial emergency allows a federal criminal trial to begin a maximum of 180 days after being charged. The emergency order does not affect the provision requiring filing of an indictment within 30 days of an arrest and it does not affect time limits for those that are awaiting trial. Chief Judge Alex Kozinski [official profile], the chair of the Judicial Council of the Ninth Circuit [official website], expressed hope that Congress would aid the Arizona district courts stating:
The district court in Arizona urgently needs additional resources. Judicial vacancies need to be filled and new judgeships should be given strong consideration. There is also a need for more court staff and facilities.

The order declared the federal emergency would last for 30 days, but at the request of Judge Silver the Ninth Circuit Judicial Council extended the suspension for an additional year. The suspension will last until February 19, 2012.

The judicial emergency was one of the initiatives of Chief Judge John Roll [WSJ Profile], who was among the victims of the recent shooting [JURIST report] in Tucson, Arizona. Arizona federal courts have experienced a drastic increase in their federal criminal caseload due to illegal immigration [JURIST news archive] and drug trafficking. The Arizona federal court currently has three vacancies and is eligible for as many as five judgeships based on its case load. In the Tucson division, which handles the most cases, three judges are handling an average of 1,200 cases each. While the strain on the District Court in Arizona is front and center due to recent events, nationwide there has been a shortage of judges, and various legal groups have called on the President and Congress to make nominations and confirmations a top priority [JURIST report].




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Vietnam court sentences democracy activist convicted of violating national security
Sarah Posner on January 26, 2011 12:33 PM ET

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[JURIST] A Vietnamese court on Wednesday sentenced former communist official Vi Duc Hoi to eight years in prison for advocating democracy and a multiparty system. Hoi was convicted of violating Vietnam's national security for information contained in articles he posted on the internet. According to Hoi's defense lawyer, he was convicted of spreading anti-government propaganda [AP report] on the internet. Hoi joined the communist party in 1980 and became a high-ranking party leader. He began advocating democratic reform in 2006 and was subsequently expelled from the communist party. In accordance with the court's ruling, Hoi now faces eight year in jail with an additional five years under house arrest following his jail term.

Hoi is among several dissidents in Vietnam who have been convicted for anti-government activity. In January 2010 a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five and a half years in prison for subversion.




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UK government proposes revised control order policy
Daniel Makosky on January 26, 2011 10:57 AM ET

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[JURIST] UK Home Secretary Theresa May [official profile] addressed Parliament [official website] on Wednesday to announce proposed changes [press release] to the country's anti-terrorism policies, including the controversial use of control orders [Guardian backgrounder; JURIST news archive]. Control orders, created by the Prevention of Terrorism Act of 2005 (PTA) [text], impose a variety of legal restrictions on individuals suspected of terrorism-related activity, regardless of the suspect's citizenship status or whether he or she has been convicted of any wrongdoing. May described [text] the existing policy as "draconian," saying:
We are also clear that the current control order regime is imperfect and has not been as effective as it should be. We therefore propose to repeal control orders. Instead, we will introduce a new package of measures which is better focused and has more targeted restrictions, supported by significantly increased resources for surveillance and other investigative tools. Restrictions that have an impact on an individual's ability to lead a normal life should be the minimum necessary, should be proportionate and should be clearly justified. The legislation we will bring forward will make clearer what restrictions can and cannot be imposed.
Under the revised system, suspects may be detained without charges for a maximum of 14 days as opposed to the current 28, though the government may seek an extension under emergency circumstances; new restrictions governing law enforcement's use of its stop and search authority will be imposed; and the use of police surveillance will be limited to investigating offenses carrying a minimum six month prison sentence. Additionally, those subject to the revamped control orders would be afforded greater freedoms than under the current system, though specifics are not yet available. The forthcoming legislation, if approved by Parliament, will be permanent unlike the PTA which requires annual renewal.

In their current form, restrictions can include curfews, limits on internet access, restrictions on travel, and limitations on employment, school, access to bank accounts and contact with other people. Amnesty International (AI) [advocacy website] issued a report [text, PDF; JURIST report] in August calling for an end to the use of control orders against terrorism suspects, characterizing the orders as legal sanctions without trial. A month prior, the UK Court of Appeal [official website] ruled [judgment, text; JURIST report] that two terrorism suspects could sue the government for damages over wrongfully imposed control orders. In June The UK Supreme Court in ruled [JURIST report] that a control order requiring an anonymous appellant to live 150 miles from his family and operate under a 16-hour curfew violated his rights under the European Convention of Human Rights (ECHR) [text]. In September 2009, then-Home Secretary Alan Johnson [BBC profile] said the government would undertake a review [JURIST report] of the system. The UK Law Lords ruled in October 2007 that the government may continue to impose control orders [JURIST report] on terror suspects in lieu of detention, but said that some elements of the orders violate human rights.




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Tunisia issues international arrest warrant for former president
Matt Glenn on January 26, 2011 10:18 AM ET

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[JURIST] Tunisia's Justice Minister Lazhar Karoui Chebbi announced Wednesday that the country has issued an international arrest warrant for ousted president Zine Al Abidine Ben Ali [BBC profile]. Ben Ali, his wife and other family members face allegations that they illegally transferred money [AFP report] out of the country, possessed unlicensed weapons [CNN report] and incited armed violence. Chebbi said some of the former president's family members have already been arrested, though others have traveled to Canada [CBC report] where some of them have permanent resident status. Canada has said it is willing to consider freezing any assets [Toronto Star report] held by Ben Ali or his family within the country. France is also considering freezing the family's assets, and the Paris prosecutor's office has opened an investigation [RFI report] into Ben Ali's assets after three NGO's filed a lawsuit in France accusing Ben Ali of corruption and money laundering.

Last week, UN High Commissioner on Human Rights Navi Pillay [official website] announced that UN experts would be sent to Tunisia [JURIST report] to assess the human rights situation and meet with the country's interim leaders. Earlier in the week, UN Secretary-General Ban Ki-Moon [official website] urged government leaders in Tunisia to initiate dialogue between all sides in an attempt to restore rule of law [JURIST report]. The Tunisia Constitutional Council officially announced earlier this month that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST reports] and left the country. The council, the country's highest legal authority on constitutional issues, declared that the leader of the lower house of parliament, Foued Mebezza, will assume power [AFP report] until elections are held in two months.




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Russia parliament approves New START treaty
Matt Glenn on January 26, 2011 9:17 AM ET

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[JURIST] The Russian Federation Council [official website, in Russian] on Wednesday voted to ratify the New START treaty [materials, PDF; JURIST news archive], an agreement between Russia and the US intended to reduce nuclear arms in both countries. The upper house of Russia's parliament unanimously supported the measure, which calls for each country to reduce its nuclear arsenal [RIA Novosti report] by about 30 percent. Under the new treaty, each country will be allowed to have 1,550 warheads as opposed to the 2,200 allowed under the old Strategic Arms Reduction Treaty [materials] that expired in December 2009. Council-member Viktor Evtukhov [official profile, in Russian] said [press release, in Russian], "[t]he conclusion of the START treaty is clearly the achievement of national policy. First, the ratification of the treaty will have a positive impact in all areas of bilateral cooperation—the signing of START-3 completely draws a line under the Cold War. Secondly, the New START treaty fully meets the interests of Russia, who chose a less costly and more rational approach." Russia included non-binding language in its ratification disapproving US plans [AP report] to build a missile defense system in Eastern Europe. Russian Defense Minister Anatoly Serdyukov said that the treaty will not affect Russian plans [RIA Novosti report] to build a missile defense system. Russia's lower house ratified the treaty [RIA Novosti report] Tuesday.

Russia's lower house originally approved the treaty [JURIST report] in December. Earlier that month, 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] last 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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Council of Europe demands Kosovo, Albania investigate organ trafficking
Julia Zebley on January 26, 2011 8:06 AM ET

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[JURIST] The Parliamentary Assembly of the Council of Europe (PACE) [official website] demanded [press release] Tuesday that Albania and Kosovo investigate and prosecute alleged incidents of organ trafficking, inhuman treatment and other crimes by the Kosovo Liberation Army (KLA) [official website] during the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. In a report [text], compiled by Dick Marty [personal website, in Italian] of the Alliance of Liberals and Democrats for Europe [official website], PACE declared:
The Assembly strongly reaffirms the need for an absolutely uncompromising fight against impunity for the perpetrators of serious human rights violations, and wishes to point out that the fact that these were committed in the context of a violent conflict could never justify a decision to refrain from prosecuting anyone who has committed such acts. There cannot and must not be one justice for the winners and another for the losers. Whenever a conflict has occurred, all criminals must be prosecuted and held responsible for their illegal acts, whichever side they belonged to and irrespective of their political role.
PACE called for EU member states and the Council of Europe to contribute to and support the European Union Rule of Law Mission in Kosovo (EULEX), as well as provide all pertinent information requested. The report was approved unanimously following a debate [transcript] and was the culmination of an investigation announced two years ago [JURIST report]. At that time, Albania refused to investigate [JURIST report] the allegations. In the debate, Marty also contended that Kosovo's Prime Minister Hashim Thaci [official website, in Albanian] headed a splinter group of the KLA and that he "exerted violent control over the trade in heroin and other narcotics" and "ordered—and in some cases personally over[saw]—assassinations, detentions, beatings and interrogations in various parts of Kosovo." Albania and Kosovo now welcome an international probe [Reuters report] but have denied [AFP report] Thaci's involvement. Thaci has also systematically denied the allegations [statement, in Albanian].

Former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) Carla Del Ponte [BBC profile] alleged in a book [JURIST report] that approximately 300 Serbian and other non-Albanian prisoners were victims of organ trafficking during the 1998-1999 war in Kosovo, but that a 2003 probe by her ICTY team failed to obtain sufficient evidence to prosecute. In response, parliamentarians submitted a motion [text] in 2008 requesting that the Assembly investigate the organ trafficking charges. Del Ponte said reliable sources told her that members of the KLA took the organs of young, healthy prisoners for black-market sales [Kosovo Compromise report]. The Swiss Foreign Ministry later barred Del Ponte from promoting the book because it was inconsistent with her role as the Swiss ambassador. In March of 2008, the office of the Serbian war crimes prosecutor [official website] said that it was investigating "informal statements" [JURIST report] received from ICTY investigators alleging illegal organ harvesting. The next month, Serbia announced [JURIST report] that it planned to officially request that the ICTY resume a probe into the organ trafficking allegations, even though Kosovo Justice Minister Nekibe Kelmendi dismissed the allegations as "fabrications." The same month, Human Rights Watch (HRW) [advocacy website] urged [JURIST report] leaders of Kosovo and Albania to launch an investigation into the allegations, but, as of May, had not received a response.




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Federal judge sentences ex-Guantanamo detainee to life imprisonment
Andrea Bottorff on January 25, 2011 2:46 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Tuesday sentenced former Guantanamo Bay [JURIST news archive] detainee Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive] to life imprisonment for his role in the 1998 bombings [PBS backgrounder] of US embassies in Tanzania and Kenya, which killed 224 people. Ghailani could have received a minimum of 20 years in prison, but instead received the maximum sentence [NYT report] of life imprisonment without parole. The sentencing occurred a few days after the court denied a request [opinion, PDF; JURIST report] to throw out the conviction. Judge Lewis Kaplan said in his ruling that the evidence presented at trial was sufficient to allow the jury to find Ghailani a "knowing and willing participant" in the attacks. The defense had argued that the conviction was inconsistent with the fact that that the jury exonerated the defendant on 284 other counts but convicted him on one charge of conspiracy.

Ghailani's conviction in November has been praised as a "victory" for the American justice system because Ghailani appeared before a jury instead of a military commission and the government was able to win its case without using evidence obtained through torture [JURIST commentaries]. In October, the court heard arguments in the trial [JURIST report], the first civilian trial of a former Guantanamo detainee. An attorney for Ghailani argued during the opening statements that al Qaeda [JURIST news archive] took advantage of Ghailani's youth and that Ghailani was unaware of the terrorists' criminal plans. In July, Kaplan refused to dismiss charges [JURIST report] against Ghailani, ruling that his Sixth Amendment right to a speedy trial had not been violated. Ghailani's lawyers had previously sought a dismissal of charges, arguing that he was denied the right to a speedy trial [JURIST reports] while being detained for nearly five years in CIA secret prisons and later at Guantanamo Bay. Earlier in July, Kaplan ruled that Ghailani was not suffering from post-traumatic stress disorder, and was therefore fit to stand trial [JURIST report].




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Peru appeals court upholds release of US woman held for involvement with rebel group
John Paul Putney on January 25, 2011 2:38 PM ET

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[JURIST] A Peruvian appeals court announced on Monday it has rejected the government's petition to overturn a lower court's decision to grant parole to Lori Berenson [advocacy website], a US citizen held since 1995 for collaboration with a Marxist rebel organization. According to Berenson and her lawyer, the ruling was final and cannot be appealed [AP report], representing a major setback [Bloomberg report] to the government's efforts to return her to jail. Berenson's release last year sparked angry public reaction [AFP report] in Peru, where she is widely remembered for her tirades in court during her televised trials in 1995. Berenson is obliged to stay in Lima for the remaining five years [NYT report] of her 20-year prison sentence unless her sentence is commuted by President Alan Garcia. If her sentence is commuted, Berenson would be deported immediately, allowing her to return to her native New York.

In November, a Peruvian judge reinstated [JURIST report] Berenson's parole, prompting another appeal from the government. Berenson was originally granted parole [JURIST report] in May with the judge citing her good behavior, renunciation of violence and completion of rehabilitation. Judges for the court restored her sentence in August, however, after legal authorities failed to verify addresses of residence [JURIST report] provided by Berenson after her release. In 2005, the Inter-American Court of Human Rights [official website] denied an appeal to reinterpret its November 2004 ruling that upheld [JURIST reports] Berenson's conviction. Lawyers for Berenson claimed that her trial failed to meet international standards for fairness and sought to have her conviction and sentence overturned. She was initially sentenced to life imprisonment by a military court, but the sentence was reduced to 20 years in a civil retrial in 2001.




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UN defends Ban Ki-moon rights record after critical report
Sarah Posner on January 25, 2011 1:22 PM ET

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[JURIST] The UN defended the human rights record of Secretary-General Ban-Ki Moon [official websites] Monday after criticism from Human Rights Watch (HRW) [advocacy website]. HRW released [JURIST report] an annual report [text, PDF] Monday, which claimed that EU member states and the UN have failed to adequately respond [press release] to human rights abuses and violations. The report criticized Ban for not putting pressure on countries with poor human rights records. Ban affirmed [press release] his commitment to human rights Tuesday when addressing the Human Rights Council:
The General Assembly established this Council nearly five years ago to put human rights on a par with development and peace. Some worried this Council would become biased, others saw it as a great hope for solving every human rights challenge that confronts our world. Two years ago, I came here and issued a challenge. I called on the Council to promote human rights without favour, without selectivity, without any undue influence.
Ban's remarks to the Human Rights Council in Geneva, Switzerland, were made in anticipation of the Council's upcoming five-year review.

The HRW report criticized the UN, the Human Rights Council and Ban for failing to adequately enforce human rights. The report specifically mentioned Ban's reluctance to put pressure on abusive governments, and substituting dialogue and cooperation for public pressure to promote human rights. HRW's report highlighted the UN's deference toward atrocities in Sri Lanka [JURIST report] as an example of the UN's human rights shortcomings. Sri Lanka faced numerous allegations of human rights violations originating from incidents that took place during the final months of its 30-year civil war. In May, HRW announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Although Ban affirmed his commitment to set up a UN panel investigating the human rights violations in Sri Lanka, HRW was dissatisfied with the UN's response.




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Wyoming legislature approves bill rejecting same-sex marriage recognition
Maureen Cosgrove on January 25, 2011 12:59 PM ET

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[JURIST] The Wyoming House of Representatives on Monday approved a bill [text, PDF] that would prevent Wyoming from recognizing same-sex marriages [JURIST news archive] and civil unions performed out-of-state. House Bill 74, Validity of Marriage, was passed by a 32-27 House vote and will now be turned over to the Senate. The Wyoming House of Representatives has rejected similar legislation [Star-Tribune report] twice in recent years. Opponents of the bill organized an "Equality Rally" in Casper, Wyoming to protest the legislation [Star-Tribune report].

Several states recognize out-of-state same-sex marriages. Earlier this month, New Mexico Attorney General Gary King [official website] issued an opinion stating that gay marriages from out of state would likely be legal [The New Mexico Independent report] there. In February, Maryland Attorney General Douglas Gansler [official website] declared that Maryland should recognize same-sex marriages performed elsewhere [JURIST report]. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington DC [JURIST reports].




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UN expert calls for international maritime piracy court
Ashley Hileman on January 25, 2011 12:37 PM ET

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[JURIST] The UN Secretary-General's special adviser on maritime piracy [JURIST news archive] Jack Lang [official profile] warned Security Council members on Monday that more needs to be done to bring Somali pirates [JURIST news archive] to justice, proposing an international piracy court. In his report, set to undergo debate [AFP report] in the UN Security Council Tuesday, Lang encouraged members to take steps and allocate resources to reduce piracy levels through the implementation of tougher security measures, as well as the establishment of an international tribunal. The report cited the increase in Somali pirate attacks and the associated costs, estimated at more than $7 billion a year, as the strongest justifications for a new approach to the problem. While warships from numerous countries already patrol shipping lanes near Somalia, Lang called for closer patrol covering areas known to be hideouts as a part of his plan to increase security against attacks. Lang also suggested the creation of a court which would be located in a foreign country but remain under Somali jurisdiction to assist in prosecuting cases of alleged piracy, a responsibility which has overwhelmed certain countries [JURIST report] in the past. However, in a move being applauded and viewed as a step forward in deterring piracy, both Malaysia and South Korea plan to prosecute [AP report] 12 Somali pirates captured in two separate raids last Friday.

Other nations have also provided deterrents to Somali piracy through capture and prosecution. In November, the Hanseatic Higher Regional Court of Hamburg [official website, in German] commenced [JURIST report] Germany's first piracy trial in 400 years against 10 accused Somali pirates. The suspects were charged with hijacking a ship registered in Hamburg off the Horn of Africa and face maximum sentences of between 10 and 15 years in prison. The accused were arrested by the Dutch navy hours after they took over the "Taipan" on April 5. Also in November, the US District Court for the Eastern District of Virginia [official website] began the first US piracy trial [JURIST report] in more than 100 years.




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Sri Lanka high court rejects former army chief's appeal
Zach Zagger on January 25, 2011 10:43 AM ET

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[JURIST] The Supreme Court of Sri Lanka [official website] ruled Tuesday that the court-martial of former army chief and parliament minister Sarath Fonseka [BBC profile; JURIST news archive] was legal and bars him from serving in government. Fonseka had appealed [DPA report] to Sri Lanka's highest court, arguing that the military tribunal which convicted him on corruption charges [JURIST report] last September did not have jurisdiction because he had retired from military service. The court disagreed, holding that tribunal was legal and constitutional. The ruling also focused on the question [The Hindu report] of whether the court-martial could be considered "any court" under the Sri Lankan Constitution [text] for purposes of disqualifying a person from serving in government. The court ruled that it does, preventing Fonseka from returning to his seat in parliament. The conviction also means that he will lose civic rights [BBC report], including the right to vote for six years, and carries a 30-month jail sentence.

Last September, Sri Lankan President Mahinda Rajapaksa [official profile; JURIST news archive] ratified the 30-month prison sentence [JURIST report] for Fonseka after a court convicted him of corruption. The court found that Fonseka gave preference to an arms company operated by his son-in-law. Fonseka, who is credited with bringing an end to the 26-year civil war, was arrested shortly after his defeat in the January 2009 presidential election in which he ran against Rajapaksa. He has been held in military custody since the arrest. Fonseka's lawyers accused the court of irregularities, and Fonseka has accused the government of seeking revenge for his decision to run in the presidential elections. Fonseka was dishonorably discharged and stripped of his rank, medals and pension.




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France transfers Congo war crimes suspect to ICC
Matt Glenn on January 25, 2011 9:45 AM ET

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[JURIST] French authorities on Tuesday transferred [ICC press release] Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder] leader Callixte Mbarushimana [case materials] to The Hague where he will stand trial before the International Criminal Court (ICC) [official website] on charges that the FDLR committed war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] in 2009. Mbarushimana denies allegations [AFP report] that he is responsible for the crimes, which include murder, torture, rape and attacks against civilians. Prosecutors claim Mbarushimana is responsible for the FDLR atrocities under Article 25(3)(d) of the Rome Statute [text, PDF], which makes it a crime to intentionally contribute to the commission of a crime by others. Mbarushimana, who was arrested in France on an ICC warrant [JURIST report] in October, is expected to appear before the ICC Tuesday to have the charges read to him.

In December, a French judge charged Mbarushimana [JURIST report] with war crimes and crimes against humanity for his role in the 1994 Rwandan genocide [JURIST news archive]. 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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Obama announces nominee for solicitor general
Matt Glenn on January 25, 2011 9:10 AM ET

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[JURIST] US President Barack Obama announced [press release] Monday that he will nominate veteran Supreme Court lawyer and former clerk for Supreme Court Justice William Brennan Donald Verrilli [Oyez profile] for the position of solicitor general [DOJ backgrounder]. Verrilli, who currently serves as deputy counsel to the president, has argued a dozen cases [WSJ report] before the Supreme Court [official website], including Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. [opinion]. In that case, the court found for Verilli's clients, MGM, that companies can be held liable if their software is used to illegally distribute copyrighted material. If confirmed, Verrilli would replace former solicitor general Elena Kagan [FJC profile; JURIST news archive], who was sworn in [JURIST report] as a Supreme Court justice in August. The White House also announced Monday that Obama will nominate David Cohen [official profile] for Undersecretary for Terrorism and Financial Crimes.

The solicitor general is formally responsible for conducting all litigation on behalf of the US government in the US Supreme Court and supervising the handling of US litigation in federal appellate courts. Neal Katyal [official profile] has been the Acting Solicitor General since Kagan left the office for the Supreme Court. The Senate confirmed Kagan as solicitor general in March 2009, two months after Obama nominated her [JURIST reports].




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Accused Arizona gunman pleads not guilty to attempted murder
Aman Kakar on January 25, 2011 8:12 AM ET

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[JURIST] Accused Arizona gunman Jared Lee Loughner [JURIST news archive] pleaded not guilty on Monday to three federal charges in the US District Court for the District of Arizona [official website]. Loughner is charged with attempting to assassinate a member of Congress [18 USC § 351(c)] and two counts of attempting to murder a federal employee [18 USC §§ 1113-1114] in connection with the shooting of Rep. Gabrielle Giffords (D-AZ) [official website] and two of her aids, Ronald Barber and Pamela Simon. Judge Larry Burns of San Diego entered the not-guilty plea [Reuters report] on Loughner's behalf at the request of Judy Clarke, Loughner's attorney. Additionally, on Sunday prosecutors filed a motion to shift future proceedings against Loughner to Tucson, Arizona. Clarke did not object to moving the proceedings. Burns set March 9 as the next court date in the case.

A federal grand jury indicted Loughner [JURIST report] last week. Earlier, a California federal judge was appointed [JURIST report] to try the case after all federal judges in Arizona recused themselves due to objectivity concerns arising from the death John Roll [WSJ profile], Chief Judge of the US District Court for the District of Arizona [official website]. The previous day, Arizona Governor Jan Brewer signed [press release, PDF; JURIST report] emergency legislation [SB1101 materials; text] making it a crime to picket or protest a funeral after Reverend Fred Phelps's Westboro Baptist Church [official website; WARNING: readers may find material on this website offensive] announced plans to picket the funeral of Christina Green, a 9-year-old girl killed in the shooting. The church later backed off its plans [Arizona Republic report] and did not hold a protest. Prosecutors charged Loughner [criminal complaint, PDF; JURIST report] with murder and attempted murder earlier this month. President Barack Obama has directed that the investigation into the shooting be conducted [press releases] by the FBI [official website] under the coordination of Director Robert Mueller [official profile]. Officials arrested Loughner on January 8 and continue to search for a possible accomplice [press release].




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Iran conducts first executions over 2009 post-election unrest
LaToya Sawyer on January 25, 2011 7:57 AM ET

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Iran executed by hanging on Monday two protesters involved in the anti-government demonstrations that erupted after the 2009 presidential elections [JURIST news archive]. The hangings are reported as the first executions involving activists that were arrested and detained after the disputed elections. The two men, Jafar Kazemi and Mohammadali Hajaghaie, members of exiled opposition group, Mujahideen Khalq Organization (MKO), were convicted for their involvement in creating and distributing photos and films [IRNA report, in Persian] of the revolution and street protests. The hangings follow a plea [press release] by US Secretary of State Hillary Clinton in August to stop the executions and to respect fundamental freedoms, especially the rights of expression. Iranian authorities claim that their decision to execute Kazemi and Hajaghaje was not grounded on fundamental rights but on the dangers that the members of MKO posed to the government.The MKO is allegedly responsible for activities involving former Iraqi dictator Saddam Hussein and numerous terrorist attacks and assassinations of significant figures and civilians.

The Iranian government has faced significant international scrutiny for its handling of the post-election protests and treatment of thousands arrested as a result. Aside from the repeated pleas form the US, Amnesty International labeled human rights violations committed by the Iranian government following the election among the worst of the past 20 years [JURIST report]. Human rights groups have also called on the UN General Assembly [official website] to appoint a special envoy [JURIST report] to investigate allegations of rights violations. Alleged human rights abuses of detainees include sexual assault, beatings and forced confessions [JURIST reports]. Many of those detained after the protests have been freed, but more than 80 have been sentenced to lengthy prison terms and five have been sentenced to death.




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JURIST seeking new Executive Director
Jaclyn Belczyk on January 24, 2011 4:53 PM ET

JURIST, the 501(c)(3) legal news and research non-profit headquartered at the University of Pittsburgh School of Law, invites candidates to apply for the position of JURIST Executive Director. The Executive Director is responsible for managing JURIST's corporate and external operations and reports to JURIST's Board of Directors. The Executive Director works closely and creatively in an innovative and rapidly-developing institutional environment with JURIST's Publisher & Editor-in-Chief, Research Director, and a staff of approximately 50 law student news researchers and reporters. The Executive Director supervises general corporate operations and legal affairs, plans and helps carry out external fundraising strategy, and coordinates budget. The position also entails planning, supervising and/or executing outreach activities bringing JURIST to the attention of legal and community groups locally and nationally. For more information and to apply, click here [PDF].




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Supreme Court rules against summary judgment appeal after full trial
Megan McKee on January 24, 2011 3:17 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously Monday in Ortiz v. Jordan [Cornell LII backgrounder; JURIST report] that a party may not appeal an order denying summary judgment after a full trial on the merits. Petitioner Michelle Ortiz was sexually assaulted by a corrections officer in prison and then placed in solitary confinement in retaliation for reporting the assault. She brought a § 1983 claim against respondents Paula Jordan, a case manager at the prison, and Rebecca Bright, who was responsible for Ortiz's time in solitary confinement. The district court denied respondents' motion for summary judgment, and they went ahead with trial without appealing. At the conclusion of the trial, the jury awarded Ortiz more than $600,000. Jordan and Bright subsequently appealed the denial of summary judgment. Rejecting their claim, Justice Ruth Bader-Ginsburg wrote:
In the case before us, the Court of Appeals, although purporting to review the District Court's denial of the prison officials' pretrial summary-judgment motion, several times pointed to evidence presented only at the trial stage of the proceedings. The appeals court erred, but not fatally, by incorrectly placing its ruling under a summary judgment headline. Its judgment was infirm, however, because Jordan's and Bright's failure to renew their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) [Cornell, text] left the appellate forum with no warrant to reject the appraisal of the evidence by the judge who saw and heard the witnesses and had the feel of the case which no appellate printed transcript can impart.
While the vote was unanimous, Justice Clarence Thomas filed a concurrence, joined by Justices Antonin Scalia and Anthony Kennedy. The concurrence maintains that the court granted certiorari to decide only the issue of whether a party may appeal an order denying summary judgment after a full trial on the merits, and argues that the court reached too far in addressing Federal Rule of Civil Procedure 50(b), suggesting that they should rule on the narrow question and remand for consideration any further issues.

The Court's decision reverses and remands the earlier ruling [text] of the US Court of Appeals for the Sixth Circuit [official website], which held in March 2009 that, "although courts normally do not review the denial of a summary judgment motion after a trial on the merits, denial of summary judgment based on qualified immunity is an exception to this rule." There was previously a circuit split on this issue.




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Supreme Court rules third party may sue employer for retaliation
Erin Bock on January 24, 2011 2:25 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously Monday in Thompson v. North American Stainless [Cornell LII backgrounder; JURIST report] that a third party can sue his employer for retaliation. Eric Thompson was fired from North American Stainless (NAS) [official website] after the company learned that his fiancee, Miriam Regalado, had filed an action under Title VII of the Civil Rights Act of 1964 [materials] alleging sex discrimination. The court granted certiorari [JURIST report] to determine if Thompson could file a claim under the anti-retaliation provision of Title VII even though he was not the individual directly aggrieved by the sex discrimination and, if so, if he had standing to file a claim. The United States District Court for the Eastern District of Kentucky and the US Court of Appeals for the Sixth Circuit both determined that the statute "does not permit third party retaliation claims." The Supreme Court, in an opinion written by Justice Antonin Scalia, reversed and remanded stating that the language of the Title VII anti-retaliation provision, which makes it unlawful for an employer to discriminate against "any of his employees" for engaging in protected conduct, was broad enough to include the firing of Thompson. The court further determined that Thompson had standing to sue under Article III [text] because he was directly aggrieved by the employer's action:
[A]ccepting the facts as alleged, Thompson is not an accidental victim of the retaliation - collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.
Justice Ruth Bader-Ginsburg wrote a concurring opinion joined by Justice Stephen Breyer in which she pointed out that this view of the anti-retaliation provision was previously endorsed by the Equal Opportunity Employment Commission (EEOC) [official website] in its Compliance Manual [materials]. Justice Elena Kagan took no part in the decision.

The Supreme Court currently has other Title VII cases on its docket. Last month, the court granted certiorari [JURIST report] in Wal-Mart v. Dukes, a massive gender discrimination class action lawsuit. The court will determine whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) [text] and whether the class certification ordered under this rule was consistent with FRCP 23(a). The case concerns an action filed in 2001 by female Wal-Mart employees alleging that the company's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. The US Court of Appeals for the Ninth Circuit upheld class certification [JURIST report] in April. he class is estimated to include more than 1.5 million women employed by Wal-Mart since December 26, 1998, which makes it the largest class action lawsuit in US history.




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UN, EU failing to stand up to rights abuses: HRW
Ann Riley on January 24, 2011 2:00 PM ET

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[JURIST] EU member states and the UN have failed to adequately respond [press release] to human rights abuses and violations, according to the Human Rights Watch (HRW) [advocacy website] annual report [text, PDF] published Monday. The report accuses countries of adopting soft approaches to human rights, such as dialogue and cooperation, without adopting concrete policies or pressuring violators to change. The report cited the increasing "use of dialogue and cooperation in lieu of public pressure" by UN Secretary General Ban Ki-moon and members of the Human Rights Council, EU High Representative for Foreign Affairs and Security Policy [official websites] Catherine Ashton's preference for diplomacy, and US President Barack Obama's inconsistent use of concrete actions [JURIST report] against human rights violations. According to the report:
This is a particularly inopportune time for proponents of human rights to lose their public voice, because various governments that want to prevent the vigorous enforcement of human rights have had no qualms about raising theirs. ... Dialogues would have a far greater impact if they were tied to concrete and publicly articulated benchmarks. ... UN Secretary-General Ban Ki-moon has been notably reluctant to put pressure on abusive governments. ... Whatever the rationalization, the quest for dialogue and cooperation is simply not a universal substitute for public pressure as a tool to promote human rights. Defending human rights is rarely convenient. It may sometimes interfere with other governmental interests. But if governments want to pursue those interest instead of human rights, they should at least have the courage to admit it, instead of hiding behind meaningless dialogues and fruitless quests for cooperation.
HRW highlighted recent examples of soft approaches to human rights violations including the response of ASEAN to Burmese repression, the UN's deference toward atrocities in Sri Lanka, the EU's approach to Uzbekistan and Turkmenistan [JURIST reports], the reaction by the West to repressive African leaders in Rwanda and Ethiopia, India's policies towards Myanmar and Sri Lanka, and the world community's non-confrontation to China [JURIST news archives].

A report earlier this month by Freedom House [advocacy website] revealed that the number of free countries and electoral democracies dropped [JURIST report] and the overall freedom in the Middle East and North Africa suffered for the fifth year. According to the report, the democratic world showed little resistance to the continuing repressive authoritarian regimes of the world, including China, Egypt, Iran, Russia, and Venezuela [JURIST news archives]. Burundi, Guinea-Bissau, Haiti [JURIST news archives], and Sri Lanka were removed from the list of electoral democracies. The nine states rated the most repressive in respect to political rights and civil liberties were Myanmar, Equatorial Guinea, Eritrea, Libya, North Korea, Somalia, Sudan, Tibet [JURIST news archives], Turkmenistan, and Uzbekistan .




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Supreme Court to examine inmates' Miranda rights
Zach Zagger on January 24, 2011 11:01 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] in two cases Monday and summarily reversed a Ninth Circuit decision in a California parole case. In Howes v. Fields [docket; cert. petition, PDF], the court granted certiorari to determine the scope of Miranda rights in jail. The case involves a Michigan man, Randall Fields, who was questioned by investigators about a child sex-abuse case while he was in the county jail serving a 45-day sentence for disorderly conduct. A lower court found that Fields did not have to be given his Miranda rights because the investigators were questioning him about a separate crime. This decision was reversed by the US Court of Appeals for the Sixth Circuit, holding [opinion, PDF] that Miranda is necessary anytime the suspect is isolated from the rest of the jail inmates in a situation where the suspect would be likely to incriminate himself.

In Reynolds v. United States [docket; cert. petition, PDF], the court will examine a circuit split over the retroactive application of the Sex Offender Registration and Notification Act (SORNA) [final guidelines, PDF], which requires sex offenders to register. The attorney general determined in 2007 that all states would have to follow the federal rule to keep registration current. Billy Joe Reynolds pleaded guilty for failure to register his new address but attempted to challenge the application of SORNA against him because his sex offender conviction in 2001 predated the attorney general's rule change. The US Court of Appeals for the Third Circuit ruled [opinion, PDF] that this did not give him "standing" to challenge the rule's application.

In Swarthout v. Cooke [opinion, PDF], the court, in a per curiam opinion, summarily reversed a decision of the Ninth Circuit to grant prisoners' release who were denied parole. In reversing the decision, the court held that prisoners have no right to parole and that states are under no duty to offer parole. Both prisoners had attempted to seek habeas relief in California state courts but were denied. Prisoner Elijah Clay was convicted of first-degree murder in 1978 and was found suitable for parole in 2003 by the parole board, but the governor stepped in under his discretion and found him unsuitable for parole. Justice Ruth Bader-Ginsburg wrote a short concurring opinion saying that the court does have the right to review the constitutionality of the application of parole procedures. The court has overturned [LAT report] three Ninth Circuit opinions in the past week, all written by liberal judge Stephen Reinhardt.




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Supreme Court rules for credit card company on notice issue
Ashley Hileman on January 24, 2011 10:55 AM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously Monday in Chase Bank v. McCoy [Cornell LII backgrounder; JURIST report] that Chase was not required to provide a cardholder with a change-in-terms notice before raising the interest rate on his credit card. The case required the court to determine whether an interest rate increase constituted a "change in terms" under Regulation Z, 12 CFR § 226.9(c) [text], which requires that a creditor provide a cardholder with a change-in-terms notice when the contractual terms governing the account have changed. The parties disputed the proper interpretation of the regulation with cardholder James McCoy arguing that the plain text indicates a change in the periodic interest rate resulting from a cardholder's default is a "change in terms" requiring notice. The court, however, adopted the interpretation advocated by Chase. Justice Sonia Sotomayor, writing for the court, stated:
We recognize that McCoy's argument has some force; read in isolation, the language quoted above certainly suggests that credit card issuers must provide notice of an interest-rate increase imposed pursuant to cardholder delinquency or default. But McCoy's analysis begs the key question: whether the increase actually changed a "term" of the Agreement that was "required to be disclosed under § 226.6." If not, § 226.9(c)'s subsequent notice requirement with respect to a "change in terms" does not apply. Chase argues precisely this: The increase did not change a term in the Agreement, but merely implemented one that had been initially disclosed, as required. This interpretation, though not commanded by the text of the regulation, is reasonable.
Sotomayor went on to provide further justification for the court's interpretation of Regulation Z by stating that, when a regulation is ambiguous with regards to a question presented to the court, it is required to look to the issuing body's interpretation for guidance. In this case, the court deferred to the interpretation of the Federal Reserve Board [official website], which it found to be in line with the regulatory text.

The interpretation of the Supreme Court is in contrast to that of the US Court of Appeals for the Ninth Circuit, which previously 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. However, it is in line with that of the US District Court for the Central District of California [official website], which originally dismissed McCoy's complaint on the grounds that the increased interest rate was not a "change in terms" and did not require Chase to provide prior notice.




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Indonesia soldiers sentenced over torture video
Sarah Paulsworth on January 24, 2011 9:12 AM ET

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[JURIST] Three Indonesian soldiers accused of torturing Papuan detainees received prison sentences Monday of less than one year. Citing lack of evidence [Al Jazeera report], a military judge convicted the men of the lesser crime of insubordination instead of torture. He sentenced [VOA report] one of the men to 10 months imprisonment, one to nine months and the third to eight months. The men were caught on video [CNN report; WARNING: readers may find the video disturbing] carrying out the torture last October. They were tried by a military tribunal after Indonesian officials admitted [JURIST reports] to their soldiers' involvement in the torture. International human rights groups have reacted negatively to the prison sentences, saying they are too lenient [press release]. Amnesty International's Asia-Pacific Deputy Program Director Donna Guest said:
It is incredible that senior Indonesian government officials have called this abuse - which included one of the men having his genitals burned - a 'minor violation.' While we welcome government efforts to provide justice for the two Papuan men, the fact that the victims were too frightened to testify in person due to the lack of adequate safety guarantees, raises serious questions about the trial process.
The group called for human rights violations to be prosecuted in civilian, rather than military, courts.

Indonesia has recently faced criticism over a variety of recent human rights issues. In December, Human Rights Watch (HRW) [advocacy website] urged the Indonesian government to repeal [JURIST report] 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. In June, HRW released a report [report materials; JURIST report] criticizing the Indonesian government for its treatment of Papuan [Economist backgrounder] and Moluccan [GlobalSecurity backgrounder] secessionists who, according to the report, face imprisonment, torture and denial of medical treatment for their beliefs. In April, the Constitutional Court voted 8-1 to uphold [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. In 2008, HRW called for Indonesia to protect freedom of religion [JURIST report] and reverse a decree that provides for the prosecution of members of a controversial Islamic sect and to uphold its commitments under the International Covenant on Civil and Political Rights [text].




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Commission concludes Israel did not violate international law in flotilla raid
Carrie Schimizzi on January 23, 2011 3:01 PM ET

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[JURIST] A civilian committee assigned to investigate the May 31 Israeli raid [JURIST news archive] on several Turkish ships bound for the blockaded Gaza Strip on concluded that Israel did not violate international law [report, PDF]. The Turkel Commission [official website], headed by former Israeli Supreme Court [official website] Justice Yakov Tirkel, along with Shabbtai Rosen, an international law professor and former Israeli diplomat, and retired Major General Amos Horev, released the first part [press release] of its final report, finding that Israel was in full compliance with international law regarding both security maritime regulations and humanitarian obligations. The report was based on testamentary evidence provided by Israeli military officials, as well as both video and photographic evidence of the attack. The report also addressed the actions of Israeli forces during the raid which resulted in the deaths of nine pro-Palestine activists and concluded that they conformed with international law:
After examining all the material it can be determined that the IDF soldiers acted professionally and in a measured manner in the face of extensive and unanticipated violence. This professionalism was evident, among other factors, in their continuing to switch back and forth between less-lethal and lethal weapons in order to address the nature of the violence directed at them.
Turkish Prime Minister Recep Tayyip Erdogan [official website, in Turkish; BBC profile] denounced the commission's findings [AP report] hours after the report was released.

Last year, the UN Human Rights Council (UNHRC) [official website] agreed to adopt a recent report [JURIST reports] criticizing Israel's raid of the Gaza-bound flotilla and finding the country committed various violations of human rights and international humanitarian law. The UNHRC also adopted the conclusions relating to judicial remedies and reparations and called on the parties involved to abide by these recommendations, which include providing medical and psychological care to those who were tortured during the raid. In July 2010, an Israeli military probe into the flotilla incident found insufficient intelligence and planning, but concluded that no punishments were necessary [JURIST report]. Israeli Prime Minister Benjamin Netanyahu [official website] testified before the civilian commission [JURIST report] in August and expressed confidence that the commission would find Israeli actions to be in compliance with international law, explaining the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas. The incident took place on May 31 when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza. International law scholars have disagreed about the propriety of the IDF's raid, with some claiming that there were clear violations of international law while others found the raid necessary and proportionate [JURIST op-eds].




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Sudan referendum voters overwhelmingly in favor of secession
Carrie Schimizzi on January 23, 2011 2:21 PM ET

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[JURIST] An overwhelming 98.8 percent [SSRC materials] of voters in Southern Sudan's Independence Referendum last week voted in favor of secession according to preliminary results released Saturday by the Southern Sudan Referendum Commission [official website]. The poll results are not yet final, as election officials will reportedly quarantine some results after voter turnout in ten Sudanese counties exceeded 100 percent and thousands of votes have yet to be counted [Xinhua report]. The final numbers will be announced between February 7 and 14, but the majority of experts believe that, even with the quarantined votes, the secession of Southern Sudan is inevitable [AP report]. According to the 2005 Comprehensive Peace Agreement (CPA) [UN report], the ten states of Southern Sudan may form a new nation if voter turnout for the referendum exceeds 60 percent and 50 percent of voters approve of independence. If the South does secede from the North, the world's 193rd country will be announced on July 9 in Juba, the capital of Southern Sudan.

In September 2010, a human rights expert told the UN that Sudan was not prepared [JURIST report] for the referendum. 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] in Geneva warning that Sudan did not have the necessary infrastructure in place and cited 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 report also stated that there are unresolved issues, including border demarcation, residency and voter eligibility, as well as the lack of a referendum commission in the contentious region of Abyei in southern Sudan. Experts had feared that the ruling National Congress Party (NCP) [party website] of Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] would try to stop the election because, depending on where the border is drawn, it could result in as much as 80 percent of the nation's oil reserves landing in the new southern state.




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California judge approves landmark settlement in teacher layoff case
Aman Kakar on January 22, 2011 5:01 PM ET

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[JURIST] Los Angeles County Superior Court [official website] Judge William F. Highberger approved a settlement on Friday effectively limiting the use of seniority in layoffs in the Los Angeles Unified School District (LAUSD) [official website]. The class action suit against the State of California [official website] and LAUSD was originally filed [text, PDF] in February 2010 by the American Civil Liberties Union of Southern California (ACLU/SC) [official website] and attorneys at Morrison & Foerster, LLP [official website] on behalf of California students. The class action suit accused the state of violating the California Constitution [text] by failing to provide equal opportunity in education and violating the privileges and immunities clause by adhering to a "last-hired, first-fired" layoff policy. The attorneys argued that policy was responsible for the firing of effective teachers which decimated the educational quality at the Plaintiff's schools. The parties reached a settlement agreement [text, PDF] in October which will prevent budget based layoffs in 45 schools whose educational quality would suffer from teacher turnovers and ensure that no school will experience greater turnover than the district average of layoffs that year. It also calls for the state to hire teachers that meet quality requirements and retention incentives to attract teachers and principals. Catherine Lhamon [official website], director of impact litigation at Public Counsel Law Center [official website] praised the decision [press release]:
Judge Highberger literally changed the educational lives of tens of thousands of LA kids, promising them they won't have to carry the budgetary pain of the school district and instead can expect a chance to learn when they go to school. As bleak as the State's financial crisis is, the good news today is that Judge Highberger restored the promise that all kids should be equal at school.
The United Teachers of Los Angeles announced [text, PDF] their plan to appeal the settlement, arguing that the settlement does not address the systemic problems at hard-to-staff schools.

Challenges to teacher tenure rules have increased as States face budget problems. On Wednesday, New Jersey Gov. Chris Christie [official website] expressed his desire to end teacher tenure based on seniority [ABC report] as a part of his school reform plans. Instead, Christie proposes to base tenure on classroom performance. Critics, including the state teachers union, however, think Christie is moving too quickly with such reforms, and should instead be a gradual process.




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For-profit schools file suit seeking to overturn new regulations
Aman Kakar on January 22, 2011 3:22 PM ET

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[JURIST] The Association of Private Sector Colleges and Universities (APSCU) [official website] on Friday filed suit [complaint, PDF] against the US Department of Education (DOE) [official website] in federal court seeking to overturn three regulations promulgated by the department. The challenged rules are a part of the DOE's final regulations [text, PDF] adopted in October. One rule challenged by the suit would stop deceptive advertising by schools. Another bars recruiters from being paid based on how many students they enroll. A third specifies minimum steps a state must take to authorize post-secondary programs that participate in federal student aid programs. In the complaint, filed at the US District Court of the District of Columbia [official website], APSCU claims the DOE's final regulation's violate both the Higher Education Opportunity Act [text, PDF] and the Constitution. Additionally, the complaint accuses the DOE of not granting private sector schools adequate representation during the negotiation rule-making process. APSCU claims that the DOE rushed the regulatory process for proposals that they knew would not be well-received in order to implement a desired outcome irrespective of the concerns of the stakeholders and the public. The DOE has not yet responded to the complaint.

The new regulations are a part of a larger federal crackdown on for-profit schools that are accused of graduating poorly educated students with high student-loan debt. A report [text, PDF] released by the US Government Accountability Office (GAO) [official website] accused for-profit colleges of promoting fraudulent practices so their students could acquire federal aid, exaggerating potential salary after graduation and failing to provide clear information about costs and duration of programs. Additionally, a 2009 GAO report found that for-profit college students were more likely to default on federal student loans than were students from other colleges.




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Guatemala ex-president begins embezzlement trial
Drew Singer on January 22, 2011 12:51 PM ET

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[JURIST] Former Guatemalan president Alfonso Portillo [CIDOB profile, in Spanish] went to trial on Friday facing charges of embezzlement [JURIST report]. Portillo denies accusations that he diverted approximately USD $15 million in funds from the Ministry of Defense while he was in power between 2000 and 2004. Former Defense Minister Eduardo Arevalo and former Finance Minister Manuel Maza are also on trial. The trial was allowed to proceed after the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] provided sufficient evidence to the court of Portillo's corruption. Evidence was also provided by the French government showing that bank accounts were established in the names of members of Portillo's family in order to launder the money. The trial was scheduled to begin in September, but was delayed after a series of objections by Portillo's lawyers.

In March, a Guatemalan court ruled that Portillo can be extradited to the US [JURIST report] to face charges of money laundering. He is accused of taking $15.8 million from funds designated for the Guatemalan Ministry of Defense and siphoning it into bank accounts in Europe and Bermuda. Portillo was arrested [BBC report] in January following an arrest warrant issued by Guatemala [JURIST report] based on the US indictment. In 2008, Portillo was extradited [JURIST report] back to Guatemala from Mexico, where he had fled after his immunity expired along with his term in office. The extradition order was first signed [JURIST report] in 2006, but Portillo challenged it until the Mexican Supreme Court ruled against him in January 2008. Lawyers for the Portillo and his minsters maintain their innocence, arguing that they were acting within the country's constitutional limits.




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Haiti to probe alleged rights violations by former dictator: report
Drew Singer on January 22, 2011 12:39 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] announced Friday that Haitian authorities will investigate crimes committed against humanity [press release] allegedly committed under the rule of Jean-Claude Duvalier [BBC backgrounder] during the 1970s and 80s. The announcement comes one day after an Amnesty International researcher met with Haitian prosecutor Harycidas Auguste, giving him documents pertaining to dozens of cases of detention without trial, systematic torture, enforced disappearances and extrajudicial executions in Haiti between 1971 and 1986. The group also urged Haiti to allow for abuse victims to speak with the government to provide evidence. Al's researcher on Haiti, Gerardo Ducos praised the government's decision to investigate Duvalier and emphasized its importance to the country:
Investigating Jean-Claude Duvalier for the human rights crimes committed during his time in power is a massive step forward. What we need to see now is a swift and impartial process, in line with international standards, that truly brings justice for those who have been waiting for too long...Torture, enforced disappearances and extrajudicial executions are crimes under international law...Justice must be done if Haiti is to move forward.
AI is also calling on the UN to provide technical support for the investigation to ensure that it is properly administered.

Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as leader [BBC report] in 1971. Following a tumultuous reign, which included accusations of thousands of murders by his regime [HRW report], Duvalier fled Haiti in 1986, and has since resided in France. In 2007, current Haitian leader Rene Preval expressed a renewed commitment to bring Duvalier to justice [JURIST report], despite Duvalier's pleas for forgiveness [Guardian report].




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Bosnia war crimes court sentences Muslim commander to 10 years
John Paul Putney on January 21, 2011 4:20 PM ET

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[JURIST] The appellate division of the War Crimes Court of Bosnia and Herzegovina (BiH) [official website] on Friday sentenced [press release] Sefik Alic, a Muslim commander, to 10 years in prison, overturning his 2008 acquittal. The prosecutor appealed the original verdict on the grounds that the lower court "erroneously and incompletely established the state of facts" leading it to misapply the law. Alic was convicted of failing to prevent the deaths of four prisoners in his custody and participating in their inhumane treatment [SE Times report]. At trial, the prosecution provided testimony from witnesses [Reuters report] as well as video footage and audio recordings. Alic denied having the command authority for the prisoners.

The BiH war crimes court was established in 2005 to reduce the caseload of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. In December, the court convicted four former Bosnian Serb policemen [JURIST report] of killing at least 150 civilians during the 1992-1995 Bosnian civil war [JURIST news archive]. In November, suspected war criminal, Dragan Crnogorac, was arrested [JURIST report] on suspicion for having committed genocide in connection with the 1995 Srebrenica massacre [JURIST news archive] during the end of the Bosnian civil war. In August, Spanish officials extradited accused Montenegrin war criminal [JURIST report] Veselin Vlahovic, known as the "monster of Grbavica," to Sarajevo.




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France court convicts former Vivendi bosses of misleading investors, insider trading
John Paul Putney on January 21, 2011 3:36 PM ET

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[JURIST] A Paris criminal court on Friday convicted former Vivendi SA [corporate website] chairman and CEO Jean-Marie Messier of misleading investors during his tenure at the helm of the French entertainment giant. Canadian Edgar Bronfman Jr., former vice-chairman of Vivendi and current Warner Music Group chairman and CEO, was convicted of insider trading and fined five million euros. Both Messier and Bronfman received suspended prison sentences [Reuters report] of three years and 15 months respectively. Messier embarked on a monolithic acquisition spree from 1996 to 2002, which transformed a French water utility, Generale des Eaux, into a massive multimedia conglomerate [AP report]. Messier was forced out in 2002 after giving upbeat reports about Vivendi finances while the company was struggling to avoid collapse under 35 billion euros in debt [BBC report]. Vivendi shares dropped more than 80 percent in value as the company amassed debt. Both Messier and Bronfman have indicated they intend to appeal the conviction.

Last January, a fedearl jury in New York found Vivendi liable on 57 counts of violating US federal securities laws [JURIST report] but exonerated Messier. Messier testified that the fall in stock price was not due to securities fraud but because of the economic climate. In 2004, the French stock market regulator fined Messier [Expatica report] one million euros, which was later reduced by an appeals court to 500,00 euros. In 2003, Vivendi paid a $50 million fine to the US Securities and Exchange Commission (SEC) [official website] to settle the complaint. Messier paid a $1 million fine and agreed to give up his claim to a 20 million euro severance payment. Vivendi had previously sued Messier [JURIST report] to recover the severance payment, claiming that board members had been coerced by Messier into signing off on the payment, but later withdrew its lawsuit as part of the settlement with the SEC.




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Federal judge denies request to overturn ex-Guantanamo detainee's conviction
Drew Singer on January 21, 2011 2:29 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Friday denied a request [opinion, PDF] to throw out the conviction of former Guantanamo Bay [JURIST news archive] detainee Ahmed Khalfan Ghailani [GlobalSecurity profile; JURIST news archive]. In his ruling, Judge Lewis Kaplan stated that the evidence presented at trial was sufficient to allow the jury to find Ghailani a "knowing and willing participation" in the 1998 bombing [PBS backgrounder] of two US embassies in Tanzania and Kenya, in which 12 Americans and 212 others were killed. The defense had argued that the conviction was inconsistent with the fact that that the jury exonerated the defendant [NYT report] on 284 other counts but convicted him on one charge of conspiracy. Ghailani is scheduled to be sentenced next week [Reuters report] and faces a minimum of 20 years in prison.

In October, the court first heard arguments in the Ghailani trial [JURIST report], the first civilian trial of a former Guantanamo Bay detainee. An attorney for Ghailani argued during the opening statements that al Qaeda [JURIST news archive] took advantage of Ghailani's youth and that Ghailani was unaware of the terrorists' criminal plans. In July, Kaplan refused to dismiss charges [JURIST report] against Ghailani ruling that his Sixth Amendment right to a speedy trial was not violated. Ghailani's lawyers sought a dismissal of charges, arguing that he was denied the right to a speedy trial [JURIST reports] while being detained for nearly five years in CIA secret prisons and later at Guantanamo Bay. Earlier in July, Kaplan ruled that Ghailani was not suffering from post-traumatic stress disorder, and was therefore fit to stand trial [JURIST report].




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Serbia court sentences 9 Albanians for war crimes
Drew Singer on January 21, 2011 2:00 PM ET

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[JURIST] Nine former ethnic Albanian guerrillas have been sentenced to a total of 101 years in prison [Reuters report] for killings committed after the Kosovo war [JURIST news archive] ended. Belgrade's War Crimes Chamber [HRW backgrounder] of the Senior Court said [press release, PDF] that the 1999 killings of 32 Serb and non-Albanian civilians were in addition to 153 cases of people being arrested, detained, tortured and later released. Three of the defendants will spend 15 years each in prison, four will spend 10 years and two were sentenced to eight years in jail. The defendants were officers in the Kosovo Liberation Army. [Global Security profile] Three of the defendants were sentenced in absentia, while everyone else was arrested two years ago. The defendants can appeal, but will remain in court custody throughout the process.

In September, the War Crimes Department of the Higher Court in Belgrade sentenced [JURIST report; press release, PDF] former paramilitary officer Zeljko Djukic to 20 years in prison for his involvement in the deaths of 14 civilians in March 1999 during the 1998-1999 Kosovo war. Djukic, a member of the Serbian paramilitary group known as Scorpion [JURIST news archive], was originally convicted [JURIST report] of the murders in June 2009. The conviction was overturned [JURIST report] earlier this year by a Serbian appeals court. The appeals court demanded a retrial for Djukic because the original verdict was based exclusively on testimony of a protected witness, which is against the Serbian Criminal Procedure Code [text, PDF].




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UK court approves extradition of terror suspect to US
LaToya Sawyer on January 21, 2011 12:33 PM ET

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[JURIST] A British court on Friday approved the extradition of alleged al Qaeda [JURIST news archive] operative Abid Naseer to the US, where he will stand trial on several charges of terrorism [DOJ press release], including providing material support to terrorists. In July, Naseer was one of five men indicted on terrorism charges [JURIST report] for his alleged involvement in the September 2009 New York City subway bomb plot [JURIST news archive]. Naseer was arrested in the UK in response to a US request that he stand trial for his alleged attempts to plant bombs in New York, Norway and the UK. Naseer's lawyers have fought his extradition to the US citing concerns that the US may attempt to deport him [BBC report] to his native country of Pakistan. Their concerns are supported by a ruling [JURIST report] issued in May by the UK Special Immigration Appeals Commission [official website], which concluded that it was not possible for Naseer to be deported to Pakistan without facing torture or death. In his ruling, Judge Quentin Purdy acknowledged concerns [AFP report] regarding Naseer's possible removal to Pakistan, but ultimately rejected the argument stating that the US court system protects the due process rights of all people subject to its jurisdiction. Before Naseer's extradition becomes official, it must be approved by the British Home Secretary. Naseer's lawyers have indicated that they plan to appeal the ruling.

Naseer is unlikely to face extradition until the European Court of Human Rights (ECHR) [official website] rules on a similar series of extradition cases that are currently before the court. In July, the ECHR stayed the extradition of four terrorism suspects [JURIST report] from the UK to the US, holding that potential punishment could violate Human Rights Convention [text] provisions on the prohibition of torture and inhumane or degrading treatment. The suspects include British citizens Haroon Rashid Aswat, Seyla Talha Ahsan and Babar Ahmad [advocacy website; BBC profile] and Egyptian-born radical Muslim cleric Abu Hamza al-Masri [BBC profile; JURIST news archive]. All four men are wanted in the US on terrorism charges. The UK High Court approved the extradition of Aswat and Ahmad to the US in 2006, while the extradition of Hamza was approved [JURIST reports] by a British court in 2007. The ECHR is reconsidering the evidence [Telegraph report] against the men and trying to determine if the US sentencing standards would lead to an Article 3 violation of the suspects' human rights.




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UN rights chief urges Mexico to probe government complicity in migrant kidnappings
Brian Jackson on January 21, 2011 11:01 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday called on the Mexican government to investigate possible complicity [press release] by government officials in the mid-December abduction of 40 Central American migrants. While details are somewhat unclear, the UN believes that Mexican officials stopped a freight train headed north in Oaxaca, detained approximately 90 migrants, and allowed the remaining individuals to continue on the train. Soon after, armed individuals boarded the train and abducted 40 of the migrants. Pillay called for a transparent investigation into the treatment of those individuals detained by the Mexican authorities, as well as the circumstances that led to the armed abduction so soon after authorities allowed the train to continue, saying:
The Mexican authorities need to ascertain whether or not any state officials, including those working for the state-owned train operator, were complicit with the criminal organization that carried out the abductions and extortion, both in this and other cases.
Pillay also condemned the threats directed at Father Alejandro Solalinde, one of Mexico's most prominent defenders of migrant rights.

The human rights environment in Mexico has deteriorated significantly over the past decade, as the Mexican Drug War [LAT backgrounder] has increased in severity. The UN Office of the High Commissioner for Human Rights (OHCHR) set up an office in Mexico in 2002 and since that time has released numerous reports [OHCHR database] documenting Mexico's struggle in the areas of education, rights of indigenous people and immigrant rights. While Mexico has condemned [JURIST report] Arizona's attempts to curb immigration into the US through the controversial SB 1070 [bill materials; JURIST news archive], activists believe that Mexican immigration laws are even more restrictive [UPI report], and that immigrants to Mexico routinely face abuse and harassment [AI report, PDF].




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UN rights experts to investigate Russia lawyer prison death
Megan McKee on January 21, 2011 9:49 AM ET

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[JURIST] A group of independent UN human rights experts will investigate the 2009 prison death [JURIST report] of Moscow lawyer Sergei Magnitsky, his former colleague William Browder announced Thursday. Magnitsky was arrested after implicating Russian police [WP report] in a multimillion-dollar embezzlement scandal, while working as outside counsel for the London-based investment fund Hermitage Capital Management [corporate website]. Prior to his death, Magnitsky was held in prison for 358 days with little to no access to legal representation, his family or medical professionals. It is suspected that torture played a part in his death. Bowder has accused the police of murdering Magnitsky in an effort to conceal their role in the embezzlement scheme and has enlisted the help of Redress [advocacy website], a British organization that works on behalf of torture victims. It is at Redress' request that the UN has decided to launch the investigation.

In September, US lawmakers introduced a bill [press release, PDF] that would prohibit the US State Department (DOS) [official website] from issuing visas to individuals, or their family members, connected to the death of Magnitsky. In addition to the visa restrictions [JURIST report], the bill would also prohibit the transaction of property or finances through US financial institutions by officials implicated in Magnitsky's death. Senator Benjamin Cardin (D-MD) [official website], who introduced the bill, said it was necessary for the US to take action because the Russian judicial system had failed to hold anyone accountable for Magnitsky's death. Cardin noted the bill's importance in protecting US business interests abroad and sending "a strong message to those who are currently acting with impunity in Russia that there will be consequences for corruption should you wish to travel and invest abroad." Cardin originally urged the DOS to take action on the visas in a letter [text, PDF] he submitted in April to Secretary of State Hillary Clinton. In addition to the letter, Cardin provided a list of 60 senior officials [text, PDF] in the Russian government and their connection to the death of Magnitsky.




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Verizon files lawsuit challenging FCC 'net neutrality' regulations
Carrie Schimizzi on January 21, 2011 8:12 AM ET

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[JURIST] Verizon [corporate website] on Thursday filed an appeal [text, PDF; press release] in the US Court of Appeals for the District of Columbia Circuit [official website] challenging new net neutrality [JURIST news archive] rules that will allow the government to regulate Internet traffic. The company is challenging the regulations, which would prevent Internet providers from selectively blocking web access, saying they "go beyond any authority provided by Congress." The new net neutrality rules were approved last month [JURIST report] by the Federal Communications Commission (FCC) [official website], and the controversy surrounding the regulations suggested legal challenges would be pursued [WSJ report]. In its statement, Verizon says the suit "is the result of a careful review of the FCC's order. We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself." Advocacy groups, however, are accusing Verizon of forum shopping and sacrificing equal Internet network accessibility in order to make a profit [press releases]. FCC Chairman Julius Genachowski [official profile], who proposed the rules [JURIST report] last month has not yet responded to the appeal.

The FCC has long been trying to exert more control over Internet regulation. Last year, 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.




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UN to send human rights mission to Tunisia
Ann Riley on January 20, 2011 2:43 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Wednesday said that a team of experts will be sent to Tunisia [press release] within the next week to assess the human rights priorities and meet with interim authorities following the ousting of its president [JURIST report] last week. In the last five weeks, more than 100 people have died from live fire, protest suicides and prison riots, according to Pillay's office. Tunisia Deputy Minister of Foreign Affairs Radhouanne Nouicer has agreed to the UN human rights mission. The interim government also has plans to set up its own human rights commissions: two Commissions inquiring into human rights abuses and corruption and a Commission on political reform. Pillay urged that justice and fair trials be strengthened and not undermined by violence, stating:
Human rights lie at the heart of the extraordinary developments which culminated in the departure of former President Ben Ali. We all hope this will be the beginning of a new Tunisia, where people are free to go about their lives without fear of arbitrary arrest, detention, torture or other forms of abuse.
Historically, Tunisia has a poor human rights reputation. A 2009 report by Amnesty International (AI) [advocacy website] detailed Tunisia's continued violations of human rights [report, PDF; JURIST report] despite previous vows to cease.


On Monday, UN Secretary-General Ban Ki-Moon [official website] urged government leaders in Tunisia to initiate dialogue [JURIST report] between all sides in an attempt to restore rule of law. The Tunisia Constitutional Council officially announced [JURIST report] last week that President Zine al-Abidine Ben Ali [official website] had permanently left the office of the president. The council, the country's highest legal authority on constitutional issues, declared that the leader of the lower house of parliament, Foued Mebezza, will assume power [AFP report] until elections are held in two months. The council made its ruling at the request of Prime Minister Mohammed Ghannouchi [Reuters profile] and based its ruling on article 57 of the constitution, declaring a "definitive" vacation of the presidency. Before flying out of Tunis to seek refuge in Saudi Arabia, Ben Ali signed a decree granting interim presidential powers to Ghannouchi, attempting to leave open the possibility of returning to office. Mebezza took the oath of office [Al Jazeera report] on Saturday and according to the council he should organize new presidential elections within 60 days.




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Obama administration may resume military commission trials: NYT
Daniel Makosky on January 20, 2011 2:41 PM ET

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[JURIST] The Obama administration may increase its use of controversial military commissions [DOD materials; JURIST news archive] for Guantanamo Bay [JURIST news archive] detainees, according to a New York Times report [text] Wednesday. Per the report, administration officials plan to rescind an order issued on Obama's first day in office that halted military commission proceedings [JURIST report] and continues to block the government from initiating new cases under the system. If done, filings are expected within weeks, which would represent the first time that new charges are brought against detainees during the Obama administration. Officials are also reportedly drafting a new executive order that would establish mechanisms by which to review the cases of those detainees held without trial.

The US Department of Defense (DOD) [official website] in April released a manual [text, PDF; JURIST report] for military commission procedures under the Military Commissions Act of 2009 [text, PDF]. The manual established the rules of evidence and procedure for the commissions, allowing for the admission of certain hearsay evidence and defining "material support" for terrorism. The release came a month after Defense Secretary Robert Gates [official profile] appointed [JURIST report] retired Navy Vice Adm. Bruce MacDonald [official profile] as the convening authority for military commissions. The position oversees military commissions themselves as well as the Office of Military Commissions and, notably, has the power to review and approve charges against "belligerents" pursuant to the Military Commissions Act. UN Special Rapporteur on human rights and counter-terrorism Martin Scheinin [official website] in March urged the administration to abandon military commissions, calling the system "fatally flawed" [JURIST report] and beyond hope of reform. Scheinin's comments followed shortly after reports emerged indicating that the administration was considering trying specific suspects in military courts [JURIST report] rather than through the civilian justice system. In May 2009, unidentified sources revealed that the administration would pursue a broad reinstitution of the commission system [JURIST report] due to concerns about the viability of trying terror suspects in federal courts and, in particular, of meeting federal evidentiary standards.




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UK court finds for Nokia in patent suit
Daniel Makosky on January 20, 2011 12:30 PM ET

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[JURIST] The UK Court of Appeal [official website] on Thursday found in favor of Finnish telecommunications company Nokia [corporate website] in its most recent patent suit against German intellectual property firm IPCom GmbH & Co [corporate website]. The ruling [text] invalidates two European patents held by IPCom, for which the company had sought substantial compensation from Nokia. In reaching its decision, the court described IPCom's litigation tactics as an "abuse of process" designed to improperly prolong the proceedings. IPCom has had 13 additional patents nullified [Bloomberg report] as a result of four prior UK suits involving Nokia, and arguments between the companies pertaining to an unrelated divisional patent are scheduled for April.

In December, Nokia filed 13 patent infringement complaints [JURIST report] against Apple [corporate website] in the UK, Germany and the Netherlands. The complaints join 24 patent claims already filed by Nokia against Apple in US courts. 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 on Nokia patents. Nokia also sued [JURIST report] Apple in October 2009 in the US District Court for the District of Delaware [official website] for allegedly violating 10 patents on wireless technology related to the iPhone.




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Key defendant in Galleon insider trading trial pleads guilty
Daniel Richey on January 20, 2011 12:18 PM ET

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[JURIST] A key defendant in the Galleon Group insider trading case pleaded guilty [press release] Wednesday to three counts of conspiracy to commit securities fraud before judge Richard Holwell of the US District Court for the Southern District of New York [official website]. Danielle Chiesi was accused of communicating non-public information about IBM Corporation, Advanced Microdevices (AMD) and Sun Microsystems (now Sun-Oracle) [corporate websites] in 2008 and 2009 to her superiors at New Castle Funds LLC [fund profile], a Manhattan-based investment advisory company formerly part of Bear Stearns [NYT backgrounder]. Chiesi was arrested in 2009 along with Galleon founder Raj Rajaratnam [JURIST news archive] and accused of using the information to reap more than $4 million in illegal profits for New Castle. Her attorney claims she never traded on her own account using the information, and that the actual take was considerably lower. New Castle is said to have gained at least $1.7 million from the trades. Chiesi reportedly got the information from former IBM executive Robert Moffat, with whom she was having an affair. Moffat is currently serving six months in prison for insider trading in connection with the Galleon case. While each count carries a maximum sentence of five years in prison and fines as much as double the gross gain from the offense, Chiesi is said to have signed a plea bargain that will limit her confinement to 46 months at most. US Attorney Preet Bharara lauded the development:
Today, Danielle Chiesi admitted to exploiting her access to valuable, non-public information to reap $1.7 million in illegal gains. By sharing and conspiring to trade on inside information, Chiesi compromised the companies she sold out and distorted the market for their stocks. Today's plea should send yet another strong message that we have zero tolerance for privileged professionals who game the system and who think the rules apply only to everyone else.
Rajaratnam's trial in what has been called the biggest insider trading investigation in history is set start on February 28, also before Judge Holwell.

Moffat was sentenced [JURIST report] in September 2010 and ordered to pay a $50,000 fine for his role in the scheme after he pleaded guilty [JURIST report] the previous March. Former Intel Capital [corporate website] executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in connection with the Galleon probe earlier in February. Rajaratnam, Chiesi, Goel and Moffat were arrested in October and charged [complaint, PDF] along with two other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi pleaded not guilty [JURIST report] in December after being indicted for insider trading.




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UN warns of possible Ivory Coast genocide
Julia Zebley on January 20, 2011 12:16 PM ET

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[JURIST] UN rights officials on Wednesday expressed "grave concerns" over continued post-election violence in the Ivory Coast [CIA backgrounder; JURIST news archive], cautioning that genocide could be imminent [press briefing]. During a daily briefing, UN Special Advisor on Genocide Francis Deng [official profile, PDF] and Special Advisor on the Responsibility to Protect Edward Luck [academic profile] discussed their fears for the nation and drew comparisons between the current situation in the Ivory Coast and the international community's failure to prevent the 1994 Rwandan genocide [JURIST news archive], as well as successful preventive measures in Kenya. The pair echoed warnings they gave last month that the UN has received unconfirmed reports of serious human rights violations [press release, PDF], specifically alleging that supporters and special forces of President Laurent Gbagbo [BBC profile] are inciting violence among different ethnic groups for political purposes. Also Wednesday, the UN Security Council unanimously authorized 2,000 additional peacekeeping troops [UN News Centre report; press briefing] in the African nation after reports of continued violence between opposing political forces and against UN peacekeepers.

The UN pledged support [JURIST report] for president-elect Alassane Ouattara [BBC profile] in January, committing UN peacekeeping forces to his aid. The UN also noted reports of mass graves [Newstime Africa report], and UN High Commissioner for Human Rights Navi Pillay [official profile] warned Gbagbo that he would be held accountable for continued post-election violence carried out in his name. Ouattara defeated Gbagbo in a runoff election in November, but Gbagbo has refused to concede defeat or leave office. During the ensuing violence, hundreds were arrested and dozens allegedly subjected to torture and ill-treatment. UN officials have pleaded [JURIST report] for all parties to the disputed presidential election to honor the country's commitment to prevent genocide and crimes against humanity under the 2005 World Summit Outcome Document [text, PDF]. The Economic Community of West African States [official website] has also urged [JURIST report] Gbagbo to step down, threatening the use of force if he attempted to maintain power. Gbagbo was elected to a five-year presidential term in 2000, but has managed to stay in office by delaying six successive elections.




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Accused Arizona gunman indicted
Daniel Richey on January 20, 2011 10:56 AM ET

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[JURIST] Accused Arizona gunman Jared Lee Loughner [JURIST news archive; case materials] was indicted [text, PDF; press release] Wednesday by a federal grand jury in Tuscon, Arizona. He is charged with attempting to assassinate a member of Congress [18 USC § 351(c)] and two counts of attempting to murder a federal employee [18 USC §§ 1113-1114] in connection with the shooting of Rep. Gabrielle Giffords (D-AZ) [official website] and two of her aids, Ronald Barber and Pamela Simon. The January 8 attack, launched on an open meeting of Giffords' constituency outside a Tuscon Safeway, took the lives of six people. Loughner faces a maximum penalty of life in prison for the attempted assassination of Giffords. Each count of attempted murder of a federal employee carries a maximum sentence of 20 years. US Attorney Dennis Burke [official biography] of the District of Arizona [official website] said the investigation is still in its "early stages":
This case involves...death-penalty charges, and Department [of Justice] rules require us to pursue a deliberate and thorough process. Today's charges are just the beginning of our legal action. We are working diligently to ensure that our investigation is thorough and that justice is done for the victims in their families.
Loughner has been in custody without bail since January 8.

Last week, a California federal judge was appointed [JURIST news report] to try the case after all federal judges in Arizona recused themselves due to objectivity concerns arising from the death John Roll [WSJ profile], Chief Judge of the US District Court for the District of Arizona [official website]. The previous day, Arizona Governor Jan Brewer signed [press release, PDF; JURIST report] emergency legislation [SB1101 materials; text] making it a crime to picket or protest a funeral after Reverend Fred Phelps's Westboro Baptist Church [official website; WARNING: readers may find material on this website offensive] announced plans to picket the funeral of Christina Green, a 9-year-old girl killed in the shooting. The church later backed off its plans [Arizona Republic report] and did not hold a protest. Prosecutors charged Loughner [criminal complaint, PDF; JURIST report] with murder and attempted murder last week. President Barack Obama has directed that the investigation into the shooting be conducted [press releases] by the Federal Bureau of Investigation (FBI) [official website] under the coordination of Director Robert Mueller [official profile]. Officials arrested Loughner on January 8 and continue to search for a possible accomplice [press release]. Due to the polarized political climate, many suspect that the attack was politically motivated [ABC report]. Giffords has received harsh criticism in Arizona for her vote for the health care reform law [HR 3590; JURIST news archive] and was among those members of Congress who reported threats or vandalism in 2010. Giffords also was an outspoken critic of Arizona's controversial immigration law [SB 1070 text; JURIST news archive]. This accusation, however, has been heavily criticized by both parties and a clear motive for the shootings has yet to be identified.




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Haiti ex-president accused of crimes against humanity
Sarah Paulsworth on January 20, 2011 10:52 AM ET

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[JURIST] Four people, including former UN spokesperson Michele Montas, filed criminal complaints on Wednesday against former Haitian president Jean-Claude Duvalier [BBC profile; JURIST news archive]. Montas, who worked for the UN under Ban-Ki Moon, as well as Alix Fils-Aime and Claude and Nicole Magloire, allege that Duvalier committed crimes against humanity [HUP report, in French]. The four were allegedly imprisoned and subjected to torture [Le Nouvelliste report, in French] during Duvalier's presidency. Three of them were forced into exile. On Tuesday, Duvalier was briefly detained and charged [JURIST report] with corruption, embezzlement and a number of other crimes. Although Duvalier was officially charged, an anonymous Haitian government official told Reuters that they had not yet decided to prosecute [Reuters report]. Duvalier's lawyers have reacted to the complaints claiming their client in the target of government persecution. Duvalier returned suddenly to Haiti from exile in France this past Sunday and has expressed a desire to become president [Radio Kiskeya report, in French] of Haiti again.

Last February, the Federal Supreme Court of Switzerland [official website, in French] announced that $4.6 million seized from Duvalier's Swiss bank account must be returned to his family [JURIST report]. The decision came after the Federal Criminal Court of Switzerland [official website, in French] rejected the family's claim to Duvalier's money, which was hidden in Swiss banks during his tenure as president. In 2007, Haitian president Rene Preval [BBC profile] vowed to continue legal proceedings [JURIST report] against Duvalier despite the latter's plea for forgiveness in a recorded message broadcast around the country. Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as "president for life." In response to accusations of human rights violations, Duvalier fled Haiti in 1986, and has since resided in France.




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Federal judge allows state employees to sue for same-sex spouse benefits
Sarah Paulsworth on January 20, 2011 9:10 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] ruled Tuesday that California state employees can sue for discrimination over the exclusion of their same-sex spouses from long-term health care programs. The Obama administration had been seeking to have the lawsuit dismissed on the basis of the Defense of Marriage Act (DOMA) [text; JURIST news archive], but Judge Claudia Wilken allowed the lawsuit to proceed [San Francisco Chronicle report]. Under DOMA, same-sex couples legally married in the state are prevented from accessing the federal rights and benefits afforded to opposite-sex spouses, including the right to sponsor a spouse for immigration, the right to Social Security survivors benefits, the right to health insurance from a spouse who is federally employed and the right to jointly file income taxes. Three employees of the University of California - San Francisco filed the lawsuit because the Public Employees' Retirement System said it would not enroll their same-sex spouses [AP report] in a federally approved long-term care program.

In August, the California Senate voted 22-12 [roll call vote] in favor of a joint resolution [AJR 19 text] to urge the federal government to repeal DOMA [JURIST report]. In July, DOMA was struck down [JURIST report] by a Massachusetts federal judge in two separate cases. In one case, Judge Joseph Tauro held that the DOMA violated the principles of equal protection embodied in the Fifth Amendment Due Process Clause as a matter of law. In the other case, Tauro found [opinion, PDF] that the DOMA violates states' Tenth Amendment right to define marriage. In August 2009, a judge for the US District Court for the Central District Court of California [official website] dismissed [opinion, PDF] a lawsuit challenging DOMA on jurisdictional grounds [JURIST report].




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Google challenges Spain order to remove links
Drew Singer on January 20, 2011 8:34 AM ET

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[JURIST] Lawyers for Google [corporate website; JURIST news archive] on Wednesday filed an appeal in Spanish court hoping to overturn orders from Spanish authorities to remove websites that allegedly violate privacy rights. Spain's Data Protection Agency [Privireal backgrounder] filed 90 orders for Google to remove the websites from its database. This case is the first of its kind [AP report], Google told the Associated Press, and it argues a ruling against it would hurt freedom of expression.

In August, Spanish officials announced in a separate case that Spain had launched an investigation [JURIST report] into whether Google violated privacy laws while collecting information over Wi-Fi networks for its Street View maps. Madrid judge Raquel Fernandino issued a subpoena for an appearance by a Google representative over a lawsuit filed by Apedanica, a Spanish association of Internet users. Apedanica claims that Google's actions violate Spain's criminal code, which prevents people from accessing certain electronic communications other than for authorized purposes. Multiple investigations are also pending around the world in connection with accusations that Google has unlawfully collected private data.




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Rights groups urge Lithuania to reopen CIA secret prison investigation
Drew Singer on January 20, 2011 7:35 AM ET

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[JURIST] Human rights groups are calling for Lithuania to reopen its investigation into whether the US Central Intelligence Agency (CIA) [official website] had a secret prison in the country. Statements from Amnesty International (AI) and Reprieve [press releases] say that Friday's decision to stop the investigation [Baltic Times report] was premature. AI says that it has a "dossier of information relevant to the investigation" it was planning to send to investigators this week, and will now do so along with a letter requesting that the criminal probe be reopened. Northwestern Law professor Joe Margulies [academic profile], counsel for an alleged CIA torture victim, said in the Reprieve press release that "[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It's ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent."

In 2009, the Lithuanian Parliament National Security Committee reported that the CIA had established secret prisons for al Qaeda suspects in the Baltic country. Lawmakers demanded the investigation [JURIST report] after ABC News reported that former CIA officials said that Lithuania provided the CIA with facilities for a secret prison for high-value al Qaeda suspects in order to improve relations with the US. The parliamentary committee concluded that the Lithuanian State Security Department provided the CIA with two secret facilities, but it is unclear whether either facility was used to interrogate detainees. Lithuanian Foreign Minister Vygaudas Usackas [official profile] resigned [JURIST report] last January in the midst of a dispute with President Dalia Grybauskaite [official profile] over whether the prisons were in the country. Grybauskaite has publicly said that she believes there were prisoners held in Lithuania, but Usackas has denied this.




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Somalia parliament rejects anti-piracy legislation
Daniel Makosky on January 19, 2011 2:25 PM ET

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[JURIST] The Somali Parliament [official website] on Tuesday rejected legislation designed to combat piracy [JURIST news archive]. The bill, introduced last week by government officials, seeks to criminalize piracy and improve internal mechanisms for trying alleged offenders. Lawmakers expressed reservations [AFP report] about the bill, including concerns about its necessity and that the proposed sentencing provisions are inconsistent with Islamic teachings. The bill was returned to a committee for amendment within five days.

A federal judge in November sentenced Jama Idle Ibrahim, a Somali citizen, to 30 years in prison after he pleaded guilty [JURIST reports] for his role in an April attach on the USS Ashland in the Gulf of Aden. Ibrahim still faces additional sentencing after pleading guilty [JURIST report] in the District of Columbia to charges relating to a 2008 attack on the M/V CEC Future. A week earlier, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against Ibrahim and five other defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Supreme Court rules on application of AEDPA, effective assistance of counsel
Hillary Stemple on January 19, 2011 2:10 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] in Harrington v. Richter [Cornell LII backgrounder; JURIST report] that the section of the Antiterrorism and Effective Death Penalty Act (AEDPA) [28 USC § 2254 text] limiting federal review of state court decisions to decisions resulting from an unreasonable application of the law or an unreasonable determination of the facts is applicable to state court orders issued without an accompanying explanation. In an 8-0 decision, the court held that, where a state court's decision is not accompanied by an opinion stating the court's reasoning, the petitioner seeking habeas corpus relief still bears the burden of proving there was not reasonable basis for the state court to deny relief. In its decision, the court also reaffirmed the standard established in Strickland v. Washington for determining the effectiveness of assistance of counsel at trial. The court held that, in order for a person to be successful on a claim of ineffective assistance of counsel, they must prove that their representation "fell below an objective standard of reasonableness" and that the failure of counsel resulted in prejudice. During oral arguments, the respondent argued [JURIST report] that defense counsel's reliance on cross-examination in lieu of forensic evidence violated his Sixth Amendment right to effective assistance of counsel. Justice Anthony Kennedy, writing for the court, rejected the petitioners argument stating that there are "countless ways to provide effective assistance in any given case" and that counsel is given wide latitude to make "tactical decisions" and still remain within the "wide range of reasonable professional assistance." Justice Ruth Bader Ginsburg authored a concurring opinion in which she stated that she did not believe the defense counsel provided the assistance guaranteed by the Sixth Amendment, but that counsel's lapse was not "so serious as to deprive Richter of a fair trial." The court overturned the ruling [opinion, PDF] in the case by the US Court of Appeals for the Ninth Circuit and remanded the case to the lower court for further proceedings. Justice Elena Kagan took no part in the ruling.

Kennedy also authored Wednesday's opinion [text, PDF] in Premo v. Moore [Cornell LII backgrounder], which reversed a Ninth Circuit grant of habeas relief [opinion, PDF] for ineffective assistance of counsel. Respondent Randy Moore filed the petition for relief on the basis that defense counsel failed to move to suppress a confession that may have been obtained illegally prior to advising him to accept a plea agreement. In an 8-0 decision, the court again applied the Strickland standard, holding that the defense counsel's representation was objectively reasonable. The court stated that it was reasonable for the state court to accept the defense counsel's explanation that a motion to suppress would have been pointless in light of additional admissible statements of guilt by Moore. The court also rejected the Ninth Circuit's application of Arizona v. Fulminante [opinion text] to the instant case, stating that Fulminante cannot be read as applying to the Strickland standard of effectiveness of counsel. Ginsburg wrote a concurring opinion in the case. Kagan took no part in the decision.




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Afghanistan president orders delay in seating of new parliament after court request
Sarah Posner on January 19, 2011 1:46 PM ET

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[JURIST] Afghan President Hamid Karzai [official profile, JURIST news archive] on Wednesday announced a one-month postponement in the seating of the country's new parliament, following a request by a high court judicial tribunal asking for more time to look into allegations of fraud surrounding last September's parliamentary elections [IEC backgrounder]. Karzai issued a decree [JURIST report] in December authorizing the country's Supreme Court [official website] to review all issues with the election including allegations of criminal fraud and intimidation at the polls. The five-judge panel announced earlier this month [JURIST report] that they would issue rulings in time for Karzai to seat the parliament as scheduled. The announcement of a further delay has raised concerns [WP report] that the Afghan government is looking for ways to challenge the validity of the election results. The tumultuous elections resulted in many of Karzai's supporters being ousted from the government and have led to questions concerning the credibility [Reuters] of the government. Candidates who were removed from office in the elections have warned that unfair rulings by the panel could result in increased violence [NYT report], while winning candidates have threatened violent protests if the election results are overturned. Karzai has assured that the delay will not go beyond February 22, which would mean that Afghanistan had been without a parliament for more than five months. The Afghan parliament was originally scheduled to be seated on January 23 and there is fear that further delays will lead to instability in the region.

The September parliamentary elections irregularities have raised doubts over the ability of the Afghan 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 Independent Elections Commission (IEC) [official website] 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, leading to attempts by the government [JURIST report] to reform the ECC.




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US appeals court upholds University of Texas affirmative action policy
Maureen Cosgrove on January 19, 2011 1:34 PM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] unanimously ruled [opinion, PDF] Tuesday to uphold the affirmative action [JURIST news archive] policy of considering race in student admissions at the University of Texas at Austin (UT) [academic website]. The plaintiffs, two Caucasian students, were denied undergraduate admission to UT in 2008, and subsequently challenged UT's admissions policy, which allows the university to consider race and ethnicity during admissions processing. The court found that the policy did not violate the plaintiffs' rights to equal protection under the Fourteenth Amendment [text] and federal civil rights statutes. The court affirmed the holding of the US District Court for the Western District of Texas [official website] that UT's policy was consistent with the 2003 US Supreme Court [official website] ruling in Grutter v. Bollinger [opinion, text; JURIST commentary]:
Their [universities'] holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.
The court concluded that UT could rely on race as one of the "special circumstances" used to evaluate student applicants because race is one of many factors the university considers.

Affirmative action continues to be a controversial issue. In August, the Supreme Court of California [official website] held that a state ban on preferential hiring practices for minorities and women does not violate [JURIST report] the federal Constitution [text]. In April 2009, California Attorney General Jerry Brown [official website] said [opinion letter, PDF] that portions of Proposition 209 [text], an amendment to the California Constitution [text] banning the use of affirmative action for state hiring, contracting, or university admission, may violate the US Constitution [JURIST report]. In November 2008, Colorado voters narrowly rejected [JURIST report] a ballot measure [Amendment 46 text and materials] to prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex. A nearly identical measure passed [JURIST report] in Nebraska. In 2006, Michigan voters approved [JURIST report] a similar state constitutional amendment, which was upheld [JURIST report] 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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Supreme Court rules NASA background checks are constitutional
Sarah Miley on January 19, 2011 1:18 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday unanimously overturned [opinion, PDF] a lower court's ruling [JURIST report] in NASA v. Nelson [Cornell LII backgrounder; JURIST report] and upheld the background checks that NASA uses for employees of companies working under contract. In 2008 the Court of Appeals for the Ninth Circuit [official website] held that the government violates a federal contract employee's constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use and when it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility. NASA has been conducting background checks of employees since it was founded in 1958, but contract employees were only included after the agency revised its Security Program Procedural Requirements [official backgrounder] in 2006. Justice Samuel Alito, writing the opinion for the court, stated that the government has an interest in conducting basic employment background checks to ensure "the security of its facilities and in employing a competent, reliable work-force." Furthermore, the investigations were the same as the standard background checks given to civil servants, and both contract employees and civil servants preform "functionally equivalent duties." Due to the reasonableness of the inquiries and recently-enacted security provisions, the government did not have a constitutional burden to demonstrate that its questions are "necessary" or the least restrictive means of furthering its interests, and, therefore, did not violate a constitutional right to information privacy. Alito was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Antonin Scalia wrote an opinion concurring in the judgment, which was joined by Justice Clarence Thomas. Justice Thomas also filed his own opinion concurring in the judgment. Justice Elena Kagan did not participate in the decision.

The case arose in 2007 when NASA [official website] began requiring background checks for all contract employees, including low-risk employees at the Jet Propulsion Laboratory (JPL) [official website]. A group of 28 employees filed suit seeking an injunction, but their claims were rejected by the District Court. Counsel for NASA argued, "the background checks' mere collection of information with accompanying safeguards vitiates no constitutional privacy interest. These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals." Counsel for the respondents argued that the background checks violate their rights under the Fifth Amendment.




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Supreme Court hears arguments on Freedom of Information Act
Brian Jackson on January 19, 2011 1:16 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 FCC v. AT&T [oral arguments transcript, PDF; JURIST report] on whether exemption 7(C) [DOJ backgrounder] of the Freedom of Information Act (FOIA) [5 USC § 552] applies to corporations. Under exemption 7(C), an agency can withhold information pursuant to an FOIA request if that information can reasonably be believed to be a violation of the individual's privacy. The issue of whether a corporation can be considered an individual for FOIA purposes has brought the court's decision in Citizens United v. FEC [JURIST report] to the fore in the minds of commentators [NLJ report]. The FCC's argument [brief, PDF] in the matter focuses on the expansive reading of FOIA by the US Court of Appeals for the Third Circuit, and that a plain text reading of the statute precludes corporations from qualifying for an exemption for possible invasion of "personal privacy." AT&T argued [brief, PDF] that the plain language of the text does include corporations, that FOIA includes corporations in the definition of person and thus "personal privacy" must refer to corporate privacy as well. Justice Antonin Scalia, in the majority in Citizens United, took issue with AT&T's position, almost from the beginning, saying at one point,
"Personal," yes, can indeed apply to corporations sometimes; but there are certain phrases where it certainly does not. For example, you talk about personal characteristics. That doesn't mean the characteristics of General Motors. You talk about personal qualities. It doesn't mean the qualities of General Motors. You talk about a point of personal privilege. It's not a privilege of a corporation. And I think personal privacy is the same thing.
Justice Elena Kagan, who signed the petition for certorari as solicitor general, did not take part in the argument and will not take part in the decision.

In Astra USA, Inc. v. Santa Clara County [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a federal court can utilize common law to provide a private cause of action under a federal statute that provides no such right. Under the Public Health Service Act [42 USC § 256b], drug manufacturers must enter into contracts with the federal government that restrict the price that those manufacturers can charge to providers through the Medicaid system. The statute is silent on the topic of a private cause of action, but the US Court of Appeals for the Ninth Circuit held that federal common law does in fact provide a cause of action under contract law where a third party beneficiary is injured by the drug manufacturer's breach. Astra argues [brief, PDF] that only Congress can provide a cause of action under a federal statute, and that this circumvention of Congressional intent will disrupt the statutory scheme and the Medicaid system. The county argues [brief, PDF] that as third-party beneficiaries, health care providers are entitled to enforce contracts and that such enforcement is necessary given the lack of oversight by the Federal government. During the course of the argument, counsel for Astra engaged in an exchange with Justice Stephen Breyer, which seemingly advanced the county's argument that private enforcement is needed,

JUSTICE BREYER: So what is Santa Clara County supposed do? They think they're being overcharged. And in your opinion -- the company doesn't, but they do. So what are they supposed to do if they're right? How do they get the money ... I'm interested in procedurally what are they supposed to do?
MS. BLATT: Oh, pick up the phone and either call the manufacturer, the prime vendor -
JUSTICE BREYER: The manufacturer says: Okay, you're wrong; I'm not; I'm undercharging you. Now what happens?
MS. BLATT: Ultimately, if they can't get the Secretary to -
JUSTICE BREYER: He's busy.
MS. BLATT: If she's busy and won't return the calls, Congress said: You can't enforce it.
As with FCC v. AT&T, Kagan will take no part in the decision of this matter.




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DOJ appeals health insurance mandate ruling
Daniel Makosky on January 19, 2011 1:14 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday appealed a ruling that found the minimum coverage provision of the recently enacted health care reform law [HR 3590 text; JURIST news archive] unconstitutional. The government filed a notice of appeal [text, PDF] in the US District Court for the Eastern District of Virginia [official website], signaling its intent to challenge Judge Henry Hudson's December finding [opinion, PDF; JURIST report] 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]. Hudson declined to issue injunctive relief at the time and anticipated the appeal, saying that "the award of declaratory judgment is sufficient to stay the hand of the executive branch pending an appeal." The appeal will proceed before the US Court of Appeals for the Fourth Circuit [official website], and it is believed that the challenge will eventually advance to the Supreme Court.

Hudson's ruling marked the first time a court struck down part of the health care legislation despite numerous legal challenges. Also in December, 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, and a similar challenge filed by Liberty University [academic website] was dismissed [JURIST report] by a judge for the US District Court for the Western District of Virginia [official 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 more than 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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Rights group reports human rights abuses and calls for investigation in Myanmar
Sarah Posner on January 19, 2011 12:44 PM ET

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[JURIST] The human rights group Physicians for Human Rights (PHR) [advocacy website] released a report [PHP report, text; press release] Wednesday detailing human rights abuses in Myanmar. The report revealed eight violations that fall under the purview of the International Criminal Court (ICC) [official website] and may be classified as crimes against humanity. The report presented the first quantitative data of human rights violations in Western Myanmar. The data reveals that government and military officials in Myanmar have perpetrated human rights violations against the Chin ethnic nationality. PHR's research suggests that the charges meet the necessary elements for the ICC to conduct an investigation. PHR Deputy Director Richard Sollom [official profile] stated:
This report reveals extraordinary levels of state and military violence against civilian populations, and many of the violations that we surveyed may constitute crimes against humanity. . .These findings demand not only attention, but action by all who are concerned with Burma's peoples, their well-being, and Burma's future.
PHR recommends a full investigation into alleged crimes against humanity and the creation of a judicial system that will allow for offenders to be prosecuted.

PHR's report comes after heavy criticism of Myanmar by both international organizations and human rights groups. In December 2010, a UN Human Rights Council (UNHRC) [official website] expert urged [JURIST report] Myanmar's military government to release 2,202 political prisoners. The UN official called for the release of the "prisoners of conscience," claiming many of them suffered from health problems as a result of the harsh detention conditions. In September 2010, Amnesty International (AI) [advocacy website] urged [JURIST report] the government of Myanmar to release all political prisoners ahead of the nation's November elections. Prior to the country's elections, opposition party leader Aung San Suu Kyi [BBC profile; JURIST news archive] was placed under house arrest. Her detention and previous exclusion from the election drew criticism from the UN and various rights groups.




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Rwanda genocide tribunal begins trial of former military official
Maureen Cosgrove on January 19, 2011 12:42 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Monday commenced the trial [press release] of Idelphonse Nizeyimana [BBC profile] on charges related to his role in the 1994 Rwandan genocide [HRW backgrounder]. Nizeyimana, nicknamed "Butcher of Butare" [RNW report], faces four counts of genocide, complicity in genocide, and crimes against humanity including rape and other inhumane acts. Specifically, Nizeyimana, while in charge of intelligence and military operations, allegedly exercised authority over soldiers and personnel and was a member of the elite inner circle of late president Juvenal Habyarimana [Britannica profile]:
Nizeyimana is alleged to have planned, incited to commit, ordered, committed, or in some other way aided and abetted the planning, preparation of executions he is charged with. He is also alleged to have known, or had reason to know, that his subordinates were preparing to commit or had committed one or more of the crimes and failed to take the necessary and reasonable measurers (sic) to prevent the said acts from being committed or to punish those who were responsible.
The prosecution alleges that Nizeyimana was among officers of the Rwanda Armed Forces who played key roles in the Rwandan genocide. Defense counsel contends that Nizeyimana was not as influential in authorizing the genocide as alleged and that he was not the de facto commander of military forces. Nizeyimana pleaded not guilty [JURIST report] to the charges in October 2009 just weeks after being arrested [JURIST report].

Nizeyimana was one of four top accused sought by the ICTR in order to complete its mission. The UN Security Council [official website] has extended the terms [JURIST report] for ICTR judges until they complete their cases. UN Secretary-General Ban Ki-Moon has pledged his ongoing support [JURIST report] for the ICTR and stresses that the international community must continue to combat genocide. The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died.




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Israel arrests, seeks to extradite accused Bosnia war criminal
Matt Glenn on January 19, 2011 10:56 AM ET

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[JURIST] A judge for the Jerusalem District Court on Wednesday ordered suspected Bosnian war criminal Aleksander Cvetkovic held in jail while the Israeli government attempts to extradite him to Bosnia to stand trial for crimes committed during the 1992-1995 Bosnian Civil War [JURIST news archive]. The Israeli State Attorney's Office [official website, in Hebrew] filed a petition [press release, in Hebrew] with the court following Cvetkovic's arrest [BiH Prosecutor's Office press release] on Monday beginning extradition process and asking that Cvetkovic be held pending his extradition. Bosnian authorities claim that Cvetkovic participated in the 1995 Srebrenica Massacre [JURIST news archive] that saw more than 8,000 Bosnian Muslims killed over a 10-day period. Witnesses claim Cvetokovic was among eight soldiers [Haaretz report] at Branjevo Farm during the massacre who executed over 1,000 blindfolded Muslim prisoners as they exited buses. Cvetkovic claims he did not participate [Ynet report] in the massacre. Bosnia first asked Israel to extradite Cvetkovic, whom they claim was in the 10th Sabotage Detachment of the Army of Republika Srpska, in August. Most believe that it will take several months [AP report] to complete the extradition process. If he is extradited, Bosnia will try Cvetkovic in the war crimes court [official website] of Bosnia and Herzegovina.

In December, the war crimes court began trying four members the 10th Sabotage Detachment [press release] for genocide for their actions at Branjevo Farm after indicting them [JURIST report] last August. Also in December, the war crimes court found four policemen guilty [JURIST report] of killing Muslim civilians during the Bosnian Civil War, handing them sentences ranging from 15 to 27 years in prison. In November, a suspected war criminal was arrested [JURIST report] in connection with the Srebrenica massacre. 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.




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Federal court dismisses ACLU request for Guantanamo transcripts
Matt Glenn on January 19, 2011 9:23 AM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Tuesday that the US government does not have to release non-redacted transcripts relating to the interrogation of certain "high value" detainees at Guantanamo Bay [JURIST news archive]. The court held that the Department of Defense (DOD) and Central Intelligence Agency (CIA) [official websites] did not improperly deny a Freedom of Information Act (FOIA) [text] request by the American Civil Liberties Union (ACLU) [advocacy website] by releasing redacted documents since two FOIA exemptions allowed the DOD to withhold certain information. The ACLU claims that the full versions of the documents contain evidence that the US government abused detainees. Under the exemptions, the government does not have to release information relating to national security that is properly classified according to executive order or information that is specifically excluded from disclosure by a statute. The court rejected ACLU arguments that the information is not subject to the exemptions since it is already widely available to the public, the interrogation techniques allegedly described in the documents are no longer legal, thus not "intelligence sources or methods," and the government cannot classify the observations of detainees. The court found: "The CIA explained with sufficient detail why the withheld information qualifies as 'intelligence sources or methods' and adequately described the potential harm to national security that could result from the information's public disclosure. Nothing in the CIA's affidavit is contradicted by the record and we find no evidence of bad faith by the government." Ben Wizener, an ACLU attorney involved in the case, disagreed Tuesday, stating [press release], "The court's decision undermines the Freedom of Information Act and condones a cover-up. These transcripts are being suppressed not to protect national security, but to shield former government officials from accountability." The court also ruled that a lower court did not err by refusing to review non-redacted versions of the documents.

Tuesday's decision affirmed a 2009 ruling [opinion, PDF; JURIST report] by the US District Court for the District of Columbia [official website]. The CIA released redacted versions [JURIST report] of the transcripts in June 2009. The DC Circuit Court of Appeals ordered the District Court to review its 2008 decision [opinion, PDF; JURIST report] allowing the government to withhold the transcripts in light of subsequent developments, including Barack Obama's executive orders to end the use of enhanced interrogation techniques and close Guantanamo Bay as well as the government's decision to declassify memos [JURIST reports] related to the use of enhanced interrogation techniques. The ACLU filed suit [complaint, PDF] in 2008 asking the court to compel the government to release the information.




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Haiti ex-president Duvalier charged with theft, corruption
Julia Zebley on January 19, 2011 8:17 AM ET

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[JURIST] Former Haitian president Jean-Claude Duvalier [BBC Profile; JURIST news archive was charged Tuesday with corruption, theft, misappropriation of funds and other unnamed crimes. Duvalier underwent several hours of questioning, and, although he was released, he does not have the right to leave Haiti. Duvalier returned to Haiti [BBC report] from exile in France on Sunday, stating that he had come to offer assistance to help the country recover from last year's earthquake [JURIST news archive]. On Monday, Amnesty International (AI) [advocacy website] called for Haitian authorities to prosecute [JURIST report] Duvalier for human rights violations committed during his time in office. AI claimed Duvalier and his regime committed acts of "systematic torture," including the disappearance or execution hundreds of human rights activists and other pro-democracy individuals at the hands of Haiti's armed forces and private militia, "tonton macoutes." There has been no comment from Haitian authorities as to whether Duvalier will eventually be charged on these allegations. Although Duvalier has been officially charged, an anonymous Haitian government official told Reuters that they had not yet decided to prosecute [Reuters report].

Last February, the Federal Supreme Court of Switzerland [official website, in French] announced that $4.6 million seized from Duvalier's Swiss bank account must be returned to his family [JURIST report]. The decision came after the Federal Criminal Court of Switzerland [official website, in French] rejected the family's claim to Duvalier's money, which was hidden in Swiss banks during his tenure as president. In 2007, Haitian president Rene Preval [BBC profile] vowed to continue legal proceedings [JURIST report] against Duvalier despite the latter's plea for forgiveness in a recorded message broadcast around the country. Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as "president for life." In response to accusations of human rights violations, Duvalier fled Haiti in 1986, and has since resided in France.




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Supreme Court hears arguments on state secrets, personal jurisdiction, preclusion
Andrea Bottorff on January 18, 2011 3:26 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 the consolidated cases of General Dynamics Corp. v. United States [oral arguments transcript, PDF; JURIST report] and The Boeing Company v. United States on the ability of the government, under the Fourteenth Amendment's Due Process Clause [Cornell LII backgrounder], to keep a claim against a party after invoking the state secrets privilege [JURIST news archive] and preventing that party from defending the claim. General Dynamics and Boeing had a contract with the government to build a version of the "stealth" fighter plane, but failed to meet the terms of the agreement, prompting the government to end the contract. The companies claimed that they could not complete the work because the Navy refused to release access to secret technology about the "stealth" fighter under the state secrets doctrine. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the Navy was justified in canceling the contract because the companies were not fulfilling their contractual obligations. Counsel for the government argued that the "state-secrets privilege will be used to bar a claim at most only when the party that is relying on secret information is trying to use the Federal court to alter the legal status quo." Counsel for General Dynamics argued that the government is unable to prove that the contractor defaulted on the contract, meaning that the government terminated the contract for convenience and the company should keep the money paid for the partially performed services.

In Smith v. Bayer Corp. [oral arguments transcript, PDF; JURIST report], the court heard arguments on two issues. First, under the re-litigation exception of the Anti-Injunction Act [28 USC § 2283], whether a district court can prohibit parties from seeking class certification in state court after denying certification to a similar class, and when the parties and claims are not identical to those in the state court action. Second, whether the district court has personal jurisdiction over absent class members that would allow the court to prevent them from requesting class certification in state court. The US Court of Appeals for the Eighth Circuit held [opinion, PDF] that the re-litigation exception permitted an injunction preventing parties denied class certification in district court from seeking class certification in state court. The court also held that the protections available to absent class members in the context of an adverse class certification ruling satisfy due process and are sufficient to bind them to the district court's decision. Counsel for the petitioners argued that his clients, individuals who were not named in the district court class action, should not be precluded by the district court's decision:

They never received notice of that prior proceeding; they never received an opportunity to appear and be heard; they never received an opportunity to opt out; and they never received an opportunity to appeal the decision denied by certification. No precedent of this Court would justify treating ... people as parties under preclusion principles under these circumstances.
Counsel for Bayer argued that the petitioners had "adequate representation," despite lacking "notice and opportunity to be heard," and should be bound by the district court's judgment.

In Stern v. Marshall [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a bankruptcy court has jurisdiction to adjudicate proof of claims. The case revisits the estate battle [JURIST report] of model Anna Nicole Smith (Vickie Lynn Marshall). The US Court of the Appeals for the Ninth Circuit held [opinion, PDF] that the bankruptcy court exceeded its jurisdiction in ruling on the case. The case had returned to the Ninth Circuit after the Supreme Court's 2006 ruling in Marshall v. Marshall [Duke Law backgrounder; JURIST report] that federal courts can in some cases decide disputes which involve state probate laws. Counsel for the petitioner argued that the bankruptcy court had jurisdiction to rule on the case under Article III [Cornell LII backgrounder] of the US Constitution. Counsel for the respondent argued that court precedent gave the bankruptcy court the proper jurisdiction.




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Ecuador president proposes constitutional reforms to combat rising crime
John Paul Putney on January 18, 2011 2:25 PM ET

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[JURIST] Ecuadorian President Rafael Correa [official website, in Spanish; BBC profile; JURIST news archive] submitted 10 constitutional referendum questions [text, PDF, in Spanish] on Monday to the Constitutional Court of Ecuador [official website, in Spanish] to certify their legality. The proposed reforms would alter the way judges are chosen, amend a preventative detention law [Reuters report] and revoke measures intended to protect those accused of serious crimes. In addition, the questions probe public support for restricting media companies from owning non-media companies and limiting banking entities to financial services. Opponents have claimed the measures are aimed at solidifying power and quieting dissent [AFP report] and have accused Correa of following the authoritarian model of Venezuelan President Hugo Chavez. If certified as legal, the questions will go to the Electoral Council for approval. The Constitutional Tribunal, led by Judge Patricio Pazmino, indicated a decision on the legality will be reached within 45 days.

In October, the Ecuadorian government announced it will revise a controversial austerity law following unrest [JURIST report] and a suspected coup attempt in September. Police officers fired tear gas at Correa, surrounded the hospital at which he was being treated and trapped him there for 12 hours while protesting the Public Service Law [text, PDF, in Spanish], which they feared would reduce their pay and benefits. In September 2008, Ecuadorian voters overwhelmingly approved a new constitution [JURIST report] that consolidated and significantly expanded the powers held by Correa, including the power to dissolve the legislature and pass laws by decree. The special assembly charged with rewriting the constitution provisionally approved [JURIST report] the document in July 2008. The success of Correa's referendum fulfilled his pledge to rewrite the country's constitution after his coalition's landslide victory [JURIST report] in October 2007. Critics characterized the 444-article constitution as giving the president too much control over the economy and the judiciary.




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Sudan security forces arrest opposition leader
Sarah Posner on January 18, 2011 1:14 PM ET

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[JURIST] Sudanese security forces on Tuesday arrested opposition leader Hassan al-Turabi [BBC profile] and eight other opposition party members. The arrests come after the Popular Congress Party (PCP) called for a popular uprising in protest of price increases on various goods. The party officials called for a "popular revolution" [Reuters] if Khartoum did not reduce price increases. Additionally, the opposition party is pressuring the government to remove its financial minister and dismantle parliament. The arrests coincide with President Omar Hassan al-Bashir [case materials; JURIST news archive] apparently losing control of the oil-producing southern region of Sudan as a result of last week's referendum.

In addition to the PCP, rights groups and international organizations have also heavily criticized [JURIST report] al-Bashir and the Sudanese government. In September, the International Criminal Court (ICC) [official website] called for the arrest of al-Bashir [JURIST report] during his visit to Kenya. Al-Bashir faces seven counts of war crimes and crimes against humanity as well as three charges of genocide [JURIST reports]. Former UN secretary-general Kofi Annan urged Kenya to reaffirm its cooperation with the ICC by arresting al-Bashir [JURIST report]. In July, an Amnesty International (AI) [advocacy website] report [JURIST report] claimed that the National Security Services in Sudan (NISS) were brutally suppressing internal dissent and targeting rights workers. Also in July, the ICC called for al-Bashir's arrest [JURIST report] during his visit to Chad, marking his first visit to an ICC member state since the warrants were issued.




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Germany court begins genocide trial of former Rwanda mayor
Maureen Cosgrove on January 18, 2011 12:45 PM ET

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[JURIST] The Frankfurt High Regional Court on Tuesday began the trial of a former Rwandan mayor on genocide charges relating to his involvement in the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Onesphore Rwabukombe [Trial Watch profile], a 54-year-old ethnic Hutu, allegedly coordinated three massacres [AFP report] in which more than 3,700 Tutsis, who had sought refuge in a church, were killed. Rwabukombe, who was mayor of Muvumba in northern Rwanda at the time of the killings, is also accused of ordering a local official to turn away Tutsi refugees seeking shelter in his home, resulting in at least one of the refugees being killed. Rwabukombe was arrested and charges were filed in Frankfurt [JURIST report] in July. This is Germany's first Rwanda genocide trial. If convicted, Rwabukombe faces life in prison.

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




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UN SG urges Tunisia leaders to restore rule of law
Ashley Hileman on January 18, 2011 12:32 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official website] on Monday urged government leaders in Tunisia to initiate dialogue between all sides in an attempt to restore rule of law in the country following the ousting of its president [JURIST report] last week. In a press conference [transcript] held in Abu Dhabi, where Ban was attending a global energy forum, he cited the most recent bouts of violence and subsequent loss of lives and property as pressing reasons for the prompt restoration of political stability. To establish a successful and long-lasting rule of law, Ban encouraged leaders to consider and work to accommodate the social and economic needs of the Tunisian citizens, whose protests have been attributed to the rising prices of necessities, a decline in available employment opportunities and allegations of corruption and restrictions on their rights and freedoms. He also encouraged the international community to support Tunisia and its leaders during this time, which he described as "a moment for the Tunisian people to strengthen the country's longstanding culture of political moderation and its attachment to peace."

The Tunisia Constitutional Council officially announced [JURIST report] last week that President Zine al-Abidine Ben Ali [official website] had permanently left the office of the president. The council, the country's highest legal authority on constitutional issues, declared that the leader of the lower house of parliament, Foued Mebezza, will assume power [AFP report] until elections are held in two months. The council made its ruling at the request of Prime Minister Mohammed Ghannouchi [Reuters profile] and based its ruling on article 57 of the constitution, declaring a "definitive" vacation of the presidency. Before flying out of Tunis to seek refuge in Saudi Arabia, Ben Ali signed a decree granting interim presidential powers to Ghannouchi, attempting to leave open the possibility of returning to office. Mebezza took the oath of office [Al Jazeera report] on Saturday and according to the council he should organize new presidential elections within 60 days.




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Supreme Court declines to rule on DC same-sex marriage, Guantanamo habeas cases
Zach Zagger on January 18, 2011 11:42 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] declined Tuesday to rule on a DC same-sex marriage referendum and a Guantanamo detainee appeal but granted certiorari [order list, PDF] in a consolidated case involving Medicaid reimbursement rates. In Jackson v. DC Board of Elections and Ethics [docket], the court denied certiorari without comment in a case over whether to allow a public referendum over Washington, DC's same-sex marriage law [JURIST news archive]. The order leaves in place the decision [JURIST report] of the District of Columbia Court of Appeals against the referendum. The Board of Elections and Ethics [official website] has contended [WP report] that allowing such a referendum would violate the District's Human Rights Law prohibiting discrimination based on sexual orientation. The Supreme Court had previously denied an emergency appeal [JURIST report] to prevent the same-sex marriage law from taking effect.

The court also denied certiorari in al-Adahi v. Obama [docket], an appeal by a Yemeni detainee seeking reinstatement of a previous order that he be released from Guantanamo Bay [JURIST news archive]. The US District Court for the District of Columbia had held that the US did not present sufficient evidence to justify further detention of the accused al-Qaeda supporter, but it was reversed [JURIST reports] by a unanimous panel of the US Court of Appeals for the District of Columbia Circuit. The government has argued that Mohammed al-Adahi, detained since 2002, was a supporter or member of the Taliban and/or al-Qaeda, claiming that al-Adahi had acted as an instructor at al Qaeda camp al Farouq, had familial ties to both the Taliban and al Qaeda, and had been employed as a bodyguard for Osama bin-Laden, and that al-Adahi's story lacked credibility. Justice Elena Kagan did not take part in the decision to deny certiorari. It is unclear whether she will participate in any of the impending Guantanamo habeas cases.

The Court granted certiorari in a consolidated case over the issue of whether the Supremacy Clause preempts Medicaid recipients and providers from bringing a suit challenging a California state law that reduces reimbursement rates. The court consolidated three cases that raised the issue: Maxwell-Jolly v. Independent Living Center of Southern California [docket; cert. petition, PDF], Maxwell-Jolly v. Santa Rosa Mem. Hosp. [docket; cert. petition, PDF], and Maxwell-Jolly v. California Pharmacists Association [docket; cert. petition, PDF]. Medicaid providers—doctors, hospitals, and pharmacies—are angry over a series of cutbacks [LAT report] by the California Legislature reducing reimbursement payments in an attempt to handle the state's financial crisis. Lawyers for the state argue that the the providers have no right to challenge the reimbursement rates and that they do not have any right to a particular rate of reimbursement.




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Rwanda police issue international arrest warrant for ex-officials
Matt Glenn on January 18, 2011 11:00 AM ET

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[JURIST] The Rwanda National Police Force [official website] issued an international arrest warrant [press release] Monday for four former Rwandan government officials now living in the US and South Africa. The four include former army chief of staff General Faustin Kayumba Nyamwasa, former ambassador to the US Theogene Rodasingwa, former foreign intelligence chief Patrick Karegeya and former prosecutor general Gerald Gahima, all of whom were former allies of Rwandan President Paul Kagame [official profile]. Rwanda's Military High Court [official website] found all four men guilty in absentia [AFP report] last week of disturbing public order, threatening state security and other offenses, handing down sentences ranging from 20 to 24 years in prison. The men have denied the allegations [AFP report], calling the charges politically motivated. Most observers do not believe the US or South Africa will act on the warrants [BBC report].

The military court summoned the men [All Africa report] in November to stand trial on the charges. The former officials published a paper [text] in August criticizing Kagame's government for corruption and human rights violations. In July, the South African foreign ministry blamed foreign agents [BBC report] for a shooting that left Nyamwasa injured. Rwanda's government claims Nyamwasa and Karegeya were behind a grenade attack [Monitor report] in Rwanda's capital city of Kigali last February. Nyamwasa is wanted in France and Spain [Business Day report] for his role in the 1994 Rwandan genocide [JURIST news archive].




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UN Lebanon tribunal hands down sealed indictment in Hariri assassination case
Matt Glenn on January 18, 2011 9:05 AM ET

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[JURIST] Prosecutor for the Special Tribunal for Lebanon [official website; JURIST news archive] Daniel Bellemare filed a sealed indictment [statement, PDF; press release] with the tribunal's pretrial judge Monday charging an unknown number of people for their roles in the 2005 assassination of former Lebanese prime minister Rafik Hariri [JURIST news archive]. The names of those indicted will be kept confidential [Lebanon Daily Star report] until the pretrial judge reviews and approves the indictment, but many believe that the indictment names members of Hezbollah [CFR backgrounder]. The review process could take close to three months. Bellemore noted the significance of the indictment, stating:
This is an important moment for the People of Lebanon. It marks the launch of the judicial phase of the Tribunal's work. For the first time, a legal case has been launched by an international Tribunal against those responsible for a political assassination in Lebanon. This step has been taken at the request and on behalf of the People of Lebanon and in fulfillment of a mandate from the United Nations Security Council. This is also an important moment for the international community - and for those who believe in international justice.
Last week, Hezbollah dissolved the Lebanese government [NYT report] when Prime Minister Saad Hariri, son of the slain former prime minister, refused to publicly reject the STL. Hezbollah supporters in Beirut publicly protested the indictment[Jerusalem Post report] Tuesday.

In August, Hezbollah submitted evidence to the STL [JURIST report] linking Israel with the bombing that killed Hariri and 22 others. The STL asked for the evidence a week earlier after Hezbollah Secretary General Hassan Nasrallah [BBC profile] claimed to have proof that Israel was behind the bombing. Last February, the head of the STL reassured [JURIST report] the Lebanese public that the investigation is on track. When asked about the progress of the investigation into the death of Hariri, the head of the STL "underlined the fact that the Tribunal already has in place all the legal and administrative instruments necessary for its work, and is fully operational so that justice may be dispensed with complete independence and impartiality in accordance with the highest international standards." The STL was established in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut.




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Haiti authorities urged to prosecute former president
Erin Bock on January 17, 2011 1:44 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] called Monday for Haitian authorities to prosecute [press release] the country's former president Jean-Claude Duvalier [BBC profile; JURIST news archive] for human rights violations committed during his time in office. Duvalier returned to Haiti on Sunday stating that he had come to offer assistance [BBC report] to help the country recover from last year's earthquake [JURIST news archive]. Duvalier was president of Haiti from 1971 to 1986. During that time, AI claims Duvalier and his regime committed acts of "systematic torture," including the disappearance or execution hundreds of human rights activists and other pro-democracy individuals at the hands of Haiti's armed forces and private militia, "tonton macoutes." Duvalier has also been accused of embezzling millions of dollars from the country. AI representative Javier Zuniga urged the country's authorities to prosecute Duvalier and others who were responsible for the human rights abuses:
The widespread and systematic human rights violations committed in Haiti during Dubalier's rule amount to crimes against humanity. Haiti is under the obligation to prosecute him and anyone else responsible for such crimes. ... The Haitian authorities must break the cycle of impunity that prevailed for decades in Haiti. Failing to bring to justice those responsible will only lead to further human rights abuses.
Other rights organizations, including Human Rights Watch [advocacy website], joined AI in calling for prosecution [press release] of the former president, stating that the only purpose for Duvalier's return to Haiti should be "to face justice."

Last February, the Federal Supreme Court of Switzerland [official website, in French] announced that $4.6 million seized from Duvalier's Swiss bank account must be returned to his family [JURIST report]. The decision came after the Federal Criminal Court of Switzerland [official website, in French] rejected the family's claim to Duvalier's money, which was hidden in Swiss banks during his tenure as president. In 2007, Haitian president Rene Preval [BBC profile] vowed to continue legal proceedings [JURIST report] against Duvalier despite the latter's plea for forgiveness in a recorded message broadcast around the country. Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as "president for life." In response to accusations of human rights violations, Duvalier fled Haiti in 1986, and has since resided in France.




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Rights group accuses Iran of 'execution binge'
Sarah Paulsworth on January 17, 2011 11:20 AM ET

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[JURIST] Iran is on an "execution binge," killing one prisoner every eight hours, the International Campaign for Human Rights in Iran [advocacy website] said in a statement [text] released on Sunday. Forty-seven prisoners have reportedly been executed in Iran since the new year, many from the country's Kurdish minority. "The execution of Kurdish activists, without fair trials and following torture, increasingly appears as a systematic, politically motivated process," said Aaron Rhodes, a spokesperson for the Campaign. The Campaign called on "the Iranian Parliament and the Judiciary to immediately institute a moratorium on executions and to move swiftly to abolish the death penalty, in the face of skyrocketing executions following unfair trials and opaque judicial proceedings." Iran executes more people per capita than any other country, and in absolute numbers, is second only to China, according to the Campaign.

Earlier this month, prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced [JURIST report] to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of moharebeh, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Also, this month, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders [JURIST report] for political unrest that took place after the country's 2009 presidential election [JURIST news archive]. In November, UN High Commissioner for Human Rights Navi Pillay [official profile] expressed her concern [text] over Iran's crackdown on human rights defenders.




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Federal judge tells CIA to investigate destruction of interrogation tapes
Sarah Paulsworth on January 17, 2011 10:09 AM ET

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[JURIST] A federal judge on Friday told the US Central Intelligence Agency (CIA) [official website] that it must investigate the destruction of interrogation tapes [AP report] related to 9/11 [JURIST news archive] and prevent similar incidents from happening in the future. Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website] made the statement while considering a complaint from the American Civil Liberties Union (ACLU) [advocacy website] seeking to have the CIA found in contempt of court [AP report] for destroying the tapes. After the judge spoke, Assistant US Attorney Tara LaMorte said that the government prosecutor who investigated the incident was willing to meet with the judge to discuss his findings. Hellerstein agreed to meet with the prosecutor and said he would make as much of the meeting public as possible.

Internal CIA documents [part 1, PDF; part 2, PDF; part 3, PDF] released last April reveal that the former head of the agency Porter Goss may have agreed to the destruction [JURIST report] of videotapes [JURIST news archive] showing harsh interrogations of terror suspects. According to redacted documents [text, PDF] filed in March 2009, 12 of 92 videotapes destroyed by the CIA [JURIST report] contained evidence of "enhanced interrogation techniques." The US Department of Justice (DOJ) [official website] had acknowledged in March 2009 that the CIA destroyed [letter, PDF] 92 videotapes of high value terrorism suspect interrogations, in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications on why it could not release the information. The August 2008 order came in response to a December 2007 ACLU motion [text, PDF] that the CIA be held in contempt of court for not providing information on the tapes during a Freedom of Information Act (FOIA) [text] lawsuit [ACLU materials] brought by the organization in an effort to access government materials on the interrogations.




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Military commission recommends allowing women to serve in direct military combat
Carrie Schimizzi on January 16, 2011 5:16 PM ET

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[JURIST] A US Military panel has recommended [report, PDF] in its latest report released Friday that women should be allowed to serve on the front lines of combat. The Military Leadership Diversity Commission (MLDC) [official website], comprised of retired and current military leaders, says that women, who under current defense policy are prohibited from serving in direct line-of-fire combat, should be permitted to serve in combat and that integration of women into combat forces would have no ill effects. The commission recommends a "time-phased" approach to the implementation of new combat policies that would create additional career options for women that include "direct ground combat." The report addressed common concerns among military officials that inclusion of women in combat forces would present problems with unit cohesion and that the current policy is effective due to current warfare techniques. The commission's conclusion is that in Iraq and Afghanistan women have already been exposed to combat-related activities, with no negative effects, and that the current policy is discriminatory to women. Commissioner Mary O'Donnell [official profile] called the current military policy banning women from combat discrimination "of the first order":
This is 2010, and as we look at outyears for war, it will probably be much more electronic than it is now. We have things from Creech Air Force Base fighting unmanned vehicles in Afghanistan right now. So we cannot look at the war that was fought in Vietnam and compare that to today or future wars. It's going to be totally different. This has to do with every American citizen being able to be considered for anything that they are qualified to do. It's about discrimination at its very basics.
The commission's overall recommendation was to eliminate all barriers preventing women from combat-related activities in the military and to gradually phase in new policies over the next few years. The commission will present its findings [AP report] to President Barack Obama [official website] and Congress later this year.

The commission report comes on the heels of the repeal of the military's controversial "Don't Ask Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive]. In December, President Obama signed into law [JURIST report] a bill to repeal the policy. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate after being passed [JURIST reports] by the House of Representatives. The Obama administration had been pushing Congress to repeal DADT as courts have also been weighing in on the issue. Earlier this year, 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. In November, 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].




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Impeached former federal judge surrenders law license
Maureen Cosgrove on January 15, 2011 3:22 PM ET

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[JURIST] The Supreme Court of Louisiana [official website] on Friday granted [text, PDF] the request of a Louisiana federal judge who sought to permanently resign from practicing law. Ex-federal judge Thomas Porteous [JURIST news archive] voluntarily surrendered his law license after being convicted on four articles of impeachment and removed by Congress [JURIST report] in December. Pursuant to the order, Porteous is no longer permitted to practice law or seek readmission to the practice of law in Louisiana or in any other jurisdiction. Porteous was accused of accepting bribes from lawyers while a judge for 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.

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] by the US Court of Appeals for the Fifth Circuit, which earlier this year reprimanded Porteous [text, PDF]. A House committee began investigating Porteous [JURIST report] in 2008. Porteous is the eighth federal judge to be impeached and convicted by Congress.




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Tunisia constitutional council announces interim president, new elections
Maureen Cosgrove on January 15, 2011 2:37 PM ET

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[JURIST] The Tunisia Constitutional Council on Saturday officially announced that President Zine al-Abidine Ben Ali [official website] has permanetly left the office of the president. The council, the country's highest legal authority on constitutional issues, declared that the leader of the lower house of parliament, Foued Mebezza, will assume power [AFP report] until elections are held in two months. The council made its ruling at the request of Prime Minister Mohammed Ghannouchi [Reuters profile] and based its ruling on article 57 of the constitution, declaring a "definitive" vacation of the presidency. Before flying out of Tunis to seek refuge in Saudi Arabia, Ben Ali signed a decree granting interim presidential powers to Ghannouchi, attempting to leave open the possibility of returning to office. Mebezza took the oath of office [Al Jazeera report] on Saturday and according to the council he should organize new presidential elections within 60 days.

On Friday, Ben Ali declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders. The declaration came a day after Ben Ali promised to cut prices [CNN report] on basic food supplies and order security forces not to use live ammunition except in cases of self-defense, as an attempt to end the protests. The protests were largely against Ben Ali and his family, who controlled numerous sectors of the economy and face accusations of corruption. Efforts to end the protests failed and within hours of the announcement Ben Ali had fled the country [BBC report] after 23 years in office, leaving Ghannouchi to assume power as interim president. In an announcement on state television [video, in Arabic], Ghannouchi cited Chapter 56 of the Tunisian Constitution [text], allowing the president to delegate his powers to the prime minister. He went on to assert that the government would adhere to the rule of law and that the announced reforms would still be implemented.




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Former Louisiana governor released from prison
Dwyer Arce on January 15, 2011 12:03 PM ET

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[JURIST] Former Louisiana governor Edwin Edwards [official profile] was released from a federal prison Thursday after being allowed to finish the remainder of his sentence in home detention. Edwards has been in prison since 2002 when he was sentenced to 10 years for fraud [AP report], racketeering and extortion. The former four term governor was convicted for attempting to manipulate the state's riverboat casino licensing process for his personal gain. Since his release, Edwards has taken a job as a business consultant to Louisiana Democratic Party Chairman Claude Leach, who runs a business in the oil and gas services. In 2008, Edward sought clemency [JURIST report] from US President George W. Bush before left office, which was never granted.

After serving four terms as governor from 1972-96, Edwards was convicted in 2000 for the extortion scheme. In 2004, US District Judge Ralph Tyson refused to overturn [JURIST report] Edwards' conviction. The rejected defense motion claimed a political bias on the part of the trial judge and additionally contended that he was impaired by painkillers as he presided over the trial. Tyson ruled that the defense "failed to point to any facts that raise a bona fide doubt as to the mental or physical competency of the trial judge."




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UN official expresses concern over violence against Palestinians
Dwyer Arce on January 15, 2011 11:00 AM ET

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[JURIST] UN Special Rapporteur Richard Falk on Friday alleged that Israeli authorities had committed several illegal acts [press release] in the Palestinian territories [UNICEF backgrounder] since the start of the year, making the prospect of a viable Palestinian state unlikely. These events include the killing of four Palestinians by the Israel Defense Forces (IDF) [official website], all of which were not justified according to Falk, and the demolition of the Shepherd Hotel [Economist report] in East Jerusalem in order to build more Jewish settlements [B'Tselem backgrounder]. The settlements, according to Falk, were part of an "accelerating pattern in Jerusalem that consists of shifting the demographic balance to reinforce Israeli claims to control permanently the entire city," thereby making Palestinian claims for an independent state with East Jerusalem as its capital impossible. Falk explained the significance of these events:
Together these events demonstrate a general and unacceptable Israeli disposition to use excessive force against Palestinians, who are already suffering from prolonged occupation. It is impossible to separate this pattern of excessive use of force against Palestinians from the indiscriminate use of force against civilians in Israel's larger occupation policy, as illustrated by the cruel punitive blockade that has been imposed on the people of Gaza for more than three years and by the illegal manner in which Israel carried out attacks for three weeks on the defenseless population of Gaza two years ago. It is time for the international community to step in and offer this long vulnerable Palestinian population protection against the violence perpetrated by Israeli authorities.
Falk went on to call for the international community to take steps to protect Palestinians from Israeli forces.

Israel has faced ongoing criticism from the UN and international human rights groups for its action in the Palestinian territories, which have been under Israeli military control since 1967. In June, Israeli human rights group B'Tselem [advocacy website] released its annual report [JURIST report], noting an advancement in the rights of Palestinians, but calling for greater improvement. The report found that fatalities had declined by 80 percent compared to the previous year, and the quality of life had improved in the West Bank. The report called on Israel to dismantle all settlements, saying that merely halting new settlements is insufficient. The rights organization also chided Israeli security forces for not adequately protecting Palestinians from violence at the hands of Israelis, criticizing a "history of leniency" against the perpetrators of that violence. In March, UN Secretary-General Ban Ki-moon called Israeli settlement construction in the West Bank "illegal" [JURIST report], and supported a plan by Palestinian Authority Prime Minister Salam Fayyad [BBC profile] to build the institutions of an independent state by 2011.




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Obama eases Cuba travel restrictions
Dwyer Arce on January 14, 2011 7:24 PM ET

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[JURIST] US President Barack Obama [official profile] on Friday ordered the Departments of State, Treasury, and Homeland Security [official websites] to take steps to ease restrictions on travel and remittances [press release] to Cuba. The new regulations, to be promulgated as modifications of the Cuban Assets Control [31 CFR § 515.101 et seq.] and Customs and Border Protection [19 CFR § 122.151 et seq.] regulations, will allow greater travel from the US to Cuba for religious and educational purposes, the transfer of up to $2000 per year to non-family members in Cuba so long as they are not senior government or Communist Party leaders, and will allow all US international airports to service charter flights between the two countries. Explaining the reasons for the new regulations, the press release stated:
The President believes these actions, combined with the continuation of the embargo, are important steps in reaching the widely shared goal of a Cuba that respects the basic rights of all its citizens. These steps build upon the President's April 2009 actions to help reunite divided Cuban families; to facilitate greater telecommunications with the Cuban people; and to increase humanitarian flows to Cuba.
The regulations will build off of those issued in April 2009 [JURIST report], which eased travel and remittances restrictions for Cuban Americans and their families in Cuba only. The new rules will take effect once published in the Federal Register [official website] within two weeks.

The propriety of the US embargo on Cuba [CFR backgrounder], in effect since 1962, has been a topic of debate in recent years. In July, the US House of Representatives Committee on Agriculture voted to lift travel and trade restrictions [JURIST report] to Cuba. The Travel Restriction Reform and Export Enhancement Act [HR 4645 materials] would have eliminated travel bans to Cuba and prohibited money transfer restrictions. The Treasury Department lifted some travel restrictions and restrictions on money transfers [JURIST report] between Cuban Americans and their families in Cuba in September 2009. The department also authorized US telecommunications companies to work within Cuba to facilitate communication between families split between the two countries. In October 2008, the UN General Assembly [official website] adopted a resolution [JURIST report] urging the US to lift the embargo.




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Rights group urges Hungary to amend new media law
LaToya Sawyer on January 14, 2011 2:47 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] called for Hungary to amend its new media law [press release] that has caused outbreaks of public protests in Budapest and Vienna. The new law took effect January 1 and creates the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the law, the government can Impose costly fines on broadcasters, newspapers and news websites if their coverage is deemed unbalanced or immoral by the media authority. AI Deputy Director of International Europe and Central Asia programme, Andrea Huber, expressed fears that the components of the new law will severely infringe upon the rights members of the media:
The vagueness of the restrictions imposed by the new media legislation is very concerning and highly likely to have an adverse effect on freedom of expression. ... Facing the possibility of stringent fines or even closure, many journalists and editors are likely to choose the 'safe' option of modifying their content. ... The breadth of the restrictions, the lack of clear guidelines for journalists and editors and the strong powers of the new regulatory body all risk placing unnecessary and disproportionate restrictions to freedom of expression in Hungary.
The law has been harshly criticized by members of the media [JURIST report], as well as other European governments, as too restrictive of free expression, and the European Commission has requested more information on the law to determine whether it complies with EU law. In response to the protests, Prime Minister Viktor Orban [official profile] has stated that he is willing to amend the law if the EU finds it discriminatory, a determination he doubts because of its similarity [EUBusiness report] to other EU media laws in his opinion.

The Hungarian Parliament [official website, in Hungarian] approved the law [Reuters report] in December, amid protests and criticism. In 2008, the Constitutional Court of Hungary [official website] struck down [JURIST report] two proposals passed by the country's parliament to criminalize hate speech as unconstitutional infringements on the freedom of expression. The court held that the extremist speech that the amendments sought to prevent was not a danger to society because it was already marginalized. The first bill would have allowed recovery in cases where a person's ethnic group, rather than the individual person, was insulted. The second bill would have designated national, ethnic, racial or religious insults as misdemeanors punishable by up to two years in prison.




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Tunisia president declares state of emergency, leaves office
Drew Singer on January 14, 2011 1:32 PM ET

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[JURIST] Tunisian President Zine al-Abidine Ben Ali [official website] declared a state of emergency Friday amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders. The declaration came a day after Ben Ali promised to cut prices [CNN report] on basic food supplies and order security forces not to use live ammunition except in cases of self-defense, as an attempt to end the protests. The protests were mostly against Ben Ali and his family, who controlled numerous sectors of the economy and are accused of corruption. Efforts to end the protests failed, however, and within hours of the announcement, Ben Ali had fled the country [BBC report] after 23 years in office, leaving Prime Minister Mohammed Ghannouchi [Reuters profile] to assume power as interim president. In an announcement on state television [video, in Arabic], Ghannouchi cited Chapter 56 of the Tunisian Constitution [text], allowing the president to delegate his powers to the prime minister. He went on to assert that the government would adhere to the rule of law and that the announced reforms would still be implemented.

In January, UN High Commissioner for Human Rights Navi Pillay [official website] urged the Tunisian government to investigate the deaths of public protesters and called on government security forces to admit use of excessive force against them [JURIST report]. Pillay expressed her "concern" over the violence and killings and called for a "transparent, credible and independent" investigation into the oppression of demonstrators. She encouraged the government to find those officials responsible for the violence stating, "If there is evidence that members of the security forces have used excessive force, or conducted extra-judicial killings, they must be arrested, tried and - if found guilty of offences - punished according to the law. It is essential that justice is done, and is seen to be done." Pillay also urged Tunisian officials to work towards adopting better policies to help alleviate the economic strife of its civilians and to "lift severe limitations on freedoms of assembly, opinion and expression, as well as association."




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Spain seeks extradition of accused Nazi guard
Hillary Stemple on January 14, 2011 12:59 PM ET

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[JURIST] The Spanish National Court [official website, in Spanish] announced Friday that they are seeking the extradition of alleged Nazi war criminal John Demjanjuk [NNDB profile, JURIST news archive] so he can stand trial on charges relating to his alleged involvement with the Flossenburg [HRP backgrounder] concentration camp where 60 Spanish citizens were killed during World War II. The Ukrainian-born Demjanjuk is currently standing trial [JURIST report] in Germany for 27,900 accessory accounts stemming from his alleged involvement as a guard at Sobibor concentration camp [Death Camps backgrounder]. In issuing the ruling, Judge Ismael Moreno indicated that Demjanjuk's actions caused him to be complicit in the commission of genocide [BBC report] and crimes against humanity. Moreno, acting under Spain's universal jurisdiction law, issued the European arrest warrant [AP report] so that Demjanjuk can be extradicted to Spain at the end of his trial in Germany. The investigation into Demjanjuk's alleged involvement in the camp began in 2008 following a request by Spanish Holocaust survivors to the National Court asking the court to investigate four alleged ex-Nazi camp guards, including Demjanjuk. Moreno issued arrest warrants for three of the accused men in September 2009, but an arrest warrant for Demjanjuk was not issued at that time because he had already been deported to Germany [JURIST reports] by the US. The German court trying Demjanjuk will now have to determine if he should be extradited [WSJ report] at the conclusion of his trial.

The German trial of Demjanjuk, which began in November 2009, has been marked by multiple appeals relating to his health, as well as efforts to dismiss the charges against him. Last May, a German court denied a motion to dismiss the charges [JURIST report] filed by the defense, which argued there was a lack of credible evidence. The court rejected the argument, saying they found the evidence against Demjanjuk to be strong. In October 2009, Demjanjuk was found fit to stand trial after the court rejected appeals [JURIST reports] relating to his health, although the court has limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany after the US Supreme Court [official website] denied his stay of deportation [JURIST report]. It is alleged that Demjanjuk volunteered to work at Sobibor [Abendzeitung report, in German] after being captured by German forces while serving as a member of the Soviet army.




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DOJ files brief defending constitutionality of Defense of Marriage Act
Brian Jackson on January 14, 2011 11:22 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday filed a brief [text, PDF] with the US Court of Appeals for the First Circuit defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. The appeal follows a July ruling [JURIST report] by the US District Court for the District of Massachusetts which found that Section 3 of DOMA, which defines marriages as being between a man and a woman, violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. In its brief, the DOJ contends that DOMA is in line with those sections of the constitution, stating that DOMA was "rationally related" to maintaining "consistency in the distribution of federal marriage-based benefits." The DOJ further contended that DOMA was permissible under Garcia v. San Antonio Metropolitan Transit Authority [text] because the act, as a "proper exercise of Congress' Spending Clause authority", does not violate the Tenth Amendment. Despite a footnote within the brief stating that the DOJ follows a practice of defending federal statutes even if the administration disagrees with the law, rights groups expressed disappointment [HRC press release] with the filing.

Likely buoyed by the result in Massachusetts, in November other rights groups filed multiple suits challenging the constitutionality of DOMA [JURIST report]. Consistent with its statement in this most recent brief, the Obama administration has extended some federal benefits [JURIST report] to same-sex couples, including allowing domestic partners to be added to insurance programs, to use medical facilities, and to be included in family size and house allocation considerations. In June, Obama ordered executive agencies to expand [JURIST report] federal childcare subsidies and services and travel and relocation payments to the same-sex partners of federal employees and their children.




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Kazakhstan parliament approves referendum to extend presidential term
Andrea Bottorff on January 14, 2011 11:12 AM ET

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[JURIST] Both houses of the Kazakhstan Parliament [official website] Friday voted unanimously to amend the constitution to authorize a referendum that would extend the term of President Nursultan Nazarbayev [official website; BBC profile] to 2020, bypassing two presidential elections. The vote overruled Nazarbayev's decision last week to veto the proposed referendum [Reuters report]. Nazarbayev's current term is set to expire in 2012 [AP report], but if he approves the parliamentary vote, he could achieve a 30-year term in office. 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. Opponents have argued that Nazarbayev's political party is attempting to eliminate any political competition. The Office for Democratic Institutions and Human Rights (ODIHR) [official website] emphasized the need for democratic elections [press release], arguing that the proposed referendum "does not offer a genuine choice between political alternatives and would infringe on the opportunity of citizens to hold their representatives accountable and to effectively exercise their right to vote and be elected." The referendum will reportedly take place as early as March 2011.

The Kazakhstan Parliament initially approved [JURIST report] the referendum last month. In June, Nazarbayev announced 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. The draft law moved quickly through Kazakhstan's parliament in May with the upper and lower [JURIST reports] houses approving the bill in under a week. In 2007, Nazarbayev approved a constitutional amendment [JURIST report] removing term limits on his own presidency, effectively allowing him to remain president for life.




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Federal judge dismisses request to end delay in issuance of drilling permits
Andrea Bottorff on January 14, 2011 10:28 AM ET

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[JURIST] A federal judge for the US District Court for the Eastern District of Louisiana [official website] on Thursday dismissed a request by the Ensco Offshore Company [official website] to end an alleged delay in the issuance of drilling permits. US District Judge Martin Feldman [Judgepedia profile] said it is unclear if the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) [official website] must process drilling requests within a certain amount of time [AP report]. Earlier this week, ENSCO sought a preliminary injunction [JURIST report] in connection with a lawsuit [text, PDF] the company filed last year against the moratorium on issuing drilling permits, which would have compelled the US Department of Interior (DOI) [official website] to "expeditiously" process five pending permit applications the company has filed. Ensco told the court that although the moratorium, which was enacted after the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive], had been lifted [JURIST report] officials continue to unreasonably delay action on deepwater drilling permit applications. Although part of Ensco's lawsuit was dismissed in November [Bloomberg report], complaints regarding the issuance of permits were allowed to proceed. The US Department of Justice (DOJ) [official website] denies there are delays [AP report] and say that the additional time is due to new safety precautions to which the DOI must adhere.

In December, the DOJ filed suit [complaint text; press release] against units of British Petroleum (BP) [corporate website] and several other companies over the Deepwater Horizon oil spill [JURIST report]. In September, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the offshore drilling moratorium. The judge held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana rejected a request to reinstate the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit similarly declined [JURIST reports]. The DOJ originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon oil spill, which occurred in April of last year, resulted in an estimated 4.9 million barrels of oil flowing into the Gulf of Mexico.




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UN rights chief urges investigation into protestor deaths in Tunisia
Carrie Schimizzi on January 14, 2011 10:04 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Thursday urged [press release] the Tunisian government to investigate the recent deaths of public protestors [NYT report] and called on government security forces to admit use of excessive force against them. According to government statistics, at least 21 civilians have been killed since the protests over unemployment and rising food costs began on December 17. According to Pillay, however, the number of deaths is most likely even higher. Pillay expressed her "concern" over the violence and killings and called for a "transparent, credible and independent" investigation into the oppression of demonstrators. She encouraged the government to find those officials responsible for the violence stating, "If there is evidence that members of the security forces have used excessive force, or conducted extra-judicial killings, they must be arrested, tried and - if found guilty of offences - punished according to the law. It is essential that justice is done, and is seen to be done." Pillay also urged Tunisian officials to work towards adopting better policies to help alleviate the economic strife of its civilians and to "lift severe limitations on freedoms of assembly, opinion and expression, as well as association." President Zine El Abidine Ben Ali on Thursday promised [CNN report] to cut prices on basic food supplies and order security forces not to use live ammunition except in cases of self-defense.

Tunisia has been accused of numerous human rights violations over the past few years. In 2009, Amnesty International (AI) [advocacy website] released a report [JURIST report] alleging Tunisia was continuing to commit hundreds of human rights abuses despite previous vows to cease. The report detailed the arrest, torture, and detention of prisoners in the name of national security, and even the kidnapping and forced return of Tunisians living abroad. In June 2008, AI released a report [text] accusing Tunisia of committing widespread human rights abuses under overly-broad anti-terrorism legislation. AI also criticized the US, as well as European and other Arab countries, for turning over terror suspects to Tunisian authorities [JURIST report] despite allegations of torture and other abuses. In February, the European Court of Human Rights ruled against the deportation of a former Tunisian terrorism suspect, finding he would likely be subjected to torture [JURIST report] in violation of Article 3 of the European Convention on Human Rights [PDF text] if returned to Tunisia. In September 2007, Human Rights Watch released a report [text] accusing Tunisian officials of mistreating two former Guantanamo detainees [JURIST report] after they were returned to the country.




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Rights group urges UN to cooperate with ICC relationship agreement
Carrie Schimizzi on January 14, 2011 9:35 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged [press release] the United Nations (UN) [official website] not to aid alleged international war criminals after they provided transportation to Amhad Harun [INTERPOL profile], whose arrest warrant [JURIST report] was issued by the International Criminal Court (ICC) [official website] in 2007 for war crimes related to the ongoing violence in Darfur [JURIST news archive]. According to AI, the UN Mission in Sudan (UNMIS) provided Harun a helicopter so he could attend a meeting. Under Article 3 of the Negotiated Relationship Agreement [agreement, PDF] between the ICC and the UN, both organizations are supposed to "cooperate closely with each other and consult each other on matters of mutual interest..." and that the UN violated that agreement by providing transportation for Harun. AI's representative at the UN, Renzo Pomi, criticized the UN's actions in the statement:
It's outrageous that someone who is wanted by the ICC for crimes against humanity and war crimes is given transport by UN without being arrested. While the efforts by UNMIS to defuse tensions and prevent human rights violations should be applauded, providing a safe haven to somebody wanted for war crimes and crimes against humanity, instead of arresting him, is inconsistent with the UN's obligations.
Harun, a former Sudanese interior minister, faces 20 counts of crimes against humanity, including murder, rape and torture, and 22 counts of war crimes, including attacks against the civilian population, destruction of property and pillaging.

Last year, ICC Chief Prosecutor Luis Moreno-Ocampo called on the UN Security Council [official website] to support the arrest [JURIST report] of Harun and another war crimes suspect. Ocampo urged the Security Council to secure the execution of the outstanding arrest warrants in light of the fact that the Sudanese government, which bears the primary responsibility to do so, had not. Also last year, Ocampo referred Sudan to the Security Council [JURIST report] for lack of cooperation in the pursuit of Harun and Kushayb. ICC Pre-Trial Chamber I released a decision [text, PDF] asking the Security Council to take any steps it deems appropriate to compel Sudan to comply with its obligation under Security Council Resolution 1593 [text, PDF], which provides that "the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.'' Since the ICC concluded that it has exhausted all its resources, the responsibility will now be shifted to the Security Council to take appropriate action. Sudan, which is not a permanent member of the ICC under the Rome Statute [text], refuses to recognize the court's jurisdiction, stating that "the International Criminal Court has no place in this crisis at all."




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Kansas AG requests to join health care lawsuit
Ann Riley on January 14, 2011 8:29 AM ET

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[JURIST] Kansas Attorney General Derek Schmidt [official website] sent a letter [text] on Wednesday to Florida Attorney General Pamela Bondi [official website] requesting that Florida add Kansas as an additional party plaintiff to its lawsuit [complaint, PDF; JURIST news archive] challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. Expressing his desire to challenge the constitutionality of the Patient Protection and Affordable Care Act (PPACA), Schmidt wrote:
The Act's mandate that all citizens and legal residents of the United States maintain qualifying healthcare coverage or pay a penalty (the individual mandate) is an unprecedented attempt to expand federal power that would encroach on the sovereignty of the State of Kansas and on the rights of our citizens. Our belief is that this expansion of federal power exceeds the authority granted to the federal government by the United States Constitution.
In requesting that Kansas be joined, Schmidt fulfilled a campaign promise he made during the general election. Schmidt took office on Monday. In October, a judge for the US District Court for the Northern District of Florida [official website] denied a motion to dismiss [opinion, PDF; JURIST report], allowing the lawsuit to continue through the courts.

Last month, a judge for the US District Court for the Eastern District of Virginia [official website] ruled [opinion, PDF; JURIST report] that the minimum coverage provision of the law is unconstitutional. Also in December, federal judges in Virginia and New Jersey [JURIST reports] dismissed lawsuits challenging the health care law's constitutionality. In November, the US Supreme Court [official website, JURIST news archive] declined to hear [JURIST report] the first preliminary challenge to the law. In October, a federal judge in Michigan ruled [order, PDF; JURIST report] that the law is constitutional under the Commerce Clause [text] as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax. Florida's lawsuit, 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 [texts] of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states.




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Number of free countries and electoral democracies dropped in 2010: Freedom House report
Ann Riley on January 13, 2011 3:08 PM ET

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[JURIST] The number of free countries and electoral democracies dropped and the overall freedom in the Middle East and North Africa suffered for the fifth year, according to a report [text, PDF] released Thursday by the US-based rights group Freedom House [advocacy website]. The group's annual assessment, Freedom in the World 2011 [materials], reports that 25 countries showed significant declines in 2010, while 11 countries showed increases, amounting to what Freedom House calls an "authoritarian challenge to democracy." According to the report, the democratic world showed little resistance to the continuing repressive authoritarian regimes of the world, including China, Egypt, Iran, Russia, and Venezuela [JURIST news archives]. Freedom House Executive Director David J. Kramer urged the world's democracies [press release] to respond to the changes, saying that authoritarian governments "are not just engaging in widespread repression, they are doing so with unprecedented aggressiveness and self-confidence, and the democratic community is not rising to the challenge." The number of "Free" countries fell from 89 to 87, with Ukraine and Mexico now classified as "Partly Free." The number of electoral democracies dropped to 115, the lowest number since 1995. Burundi, Guinea-Bissau, Haiti, and Sri Lanka were removed from the list of electoral democracies and the Philippines, Tanzania, and Tonga [JURIST news archives] were added. The nine states rated the most repressive in respect to political rights and civil liberties were Burma, Equatorial Guinea, Eritrea, Libya, North Korea, Somalia, Sudan, Tibet, Turkmenistan, and Uzbekistan [JURIST news archives].

Although a previous March report [materials; JURIST report] by Freedom House showed that women's rights and opportunities had increased in nearly all Middle Eastern and North African countries over the last five years, the Middle East and North Africa were reported as the regions with the lowest level of freedom in 2010. Ukraine was pushed to the "Partly Free" list after repressing freedoms of the press and experiencing election fraud [JURIST report] and the politicization of the judiciary. In April, Amnesty International (AI) [advocacy group] urged the Ukrainian government to ensure accountability for human rights violations [JURIST report]. AI also urged Ukraine to record and monitor incidents of racially motivated crimes and to create a fair asylum system. Mexico lost its "Free" status after the government's failure [JURIST report] to curb the country's violence and drug trafficking. Freedom House measures civil liberties and political rights [backgrounder] of a country and assigns an overall "freedom status" of "Free," "Partly Free," or "Not Free" based on the results.




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Bankruptcy judge approves $7.2 billion settlement with Madoff client
John Paul Putney on January 13, 2011 2:36 PM ET

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[JURIST] A US bankruptcy judge approved a historic settlement on Thursday with the estate of Jeffry Picower, a friend and investor of fraudulent financier Bernard Madoff [JURIST news archive]. As part of the approved settlement, Picower's widow, Barbara, has agreed to forfeit an unprecedented $7.2 billion to Trustee Irving Picard [LA Times report] to be returned to victims of the multi-billion dollar Ponzi scheme. The settlement was approved by US Bankruptcy Judge Burton Lifland in Manhattan over objections by some investors. Picower, a philanthropist and businessman, drowned in October 2009 [AP report] after suffering a heart attack in the swimming pool of his mansion in Palm Beach, Florida. The settlement was announced [press release] in December by US Attorney's office after Picard, the trustee responsible for liquidating Madoff’s assets, including his investment firm, sued Picower in May 2009 [Bloomberg report]. Barbara Picower agreed to return all profits received from the Madoff firm but insists that her husband was unaware of Madoff's fraudulent activities and was never charged with a crime. With the Picower forfeiture, authorities have collected a total of $9.8 billion related to the Madoff fraud.

In December, Picard filed close to 60 lawsuits in an attempt to recover more than $40 billion [JURIST report] from numerous banks, hedge funds and individuals, coinciding with the two-year deadline for seeking compensation. In November 2009, David Friehling, former outside accountant for Madoff, pleaded guilty to fraud charges [JURIST report] in the US District Court for the Southern District of New York, but denied knowledge of Madoff’s Ponzi scheme. In June 2009, Madoff was sentenced to 150 years in prison [JURIST report] on securities fraud charges stemming from his multi-billion dollar Ponzi scheme, the largest in US history.




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New York judge allows release of NYC teacher performance data
Daniel Makosky on January 13, 2011 1:50 PM ET

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[JURIST] A New York State Supreme Court [official website] judge on Monday ruled [opinion, PDF] that the New York City Department of Education [official website] may release performance data on 12,000 city teachers. The order permits the Department of Education to comply with requests for Teacher Data Reports (TDRs) containing teacher names recently made by several media outlets under New York's Freedom of Information Law (FOIL) [text]. Justice Cynthia Kern denied the United Federation of Teachers' (UFT) [advocacy website] petition to block the release on privacy grounds, finding that "courts have repeatedly held that release of job-performance related information, even negative information such as that involving misconduct, does not constitute an unwarranted invasion of privacy." UFT lawyers also argued that the data should remain sealed due to concerns about its accuracy, though Kern cited precedent in ruling that information released under FOIL need not necessarily be reliable. UFT announced [press releases] its intent to appeal, and indicated that city lawyers have agreed not to release the data until the matter is resolved.

New York City employs approximately 80,000 public school teachers [official backgrounder], of whom 12,000 were included in the TDR pilot program that began during the 2007-08 academic year. The reports rely on standardized tests [official materials] to compare predicted student progress to actual improvement, attributing the difference to the effectiveness of the student's teacher after correcting for variables such as the student's poverty level and native language. TDRs have been disclosed previously under FOIL, though the releases did not include teachers' names.




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Federal judge appointed to hear Arizona shooting case
Daniel Richey on January 13, 2011 12:26 PM ET

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[JURIST] A California federal judge was appointed Thursday to hear the trial of Arizona shooting [NYT backgrounder] suspect Jared Loughner. Judge Alex Kozinski [official biography] of the US Court of Appeals for the Ninth Circuit [official website] appointed Judge Larry Burns [Judgepedia profile] of the US District Court for the Southern District of California [official website] to preside over federal proceedings against Loughner in connection with the high-profile shooting at a political rally outside a Safeway in Tuscon, Arizona, that took the lives of a nine-year-old girl, Chief Judge John Roll [WSJ profile] of the US District Court for the District of Arizona [official website] and four others. Fourteen others were injured in the incident, including Rep. Gabrielle Giffords (D-AZ). Burns, who was appointed by President George W. Bush in 2003, has experience trying high-profile felony cases. In 2007, he presided over the trial of Mexican drug lord Francisco Javier Arellano [JURIST report; press release] and in 2005 over the high-profile prosecution [JURIST report; plea agreement, PDF] of former Rep. Randall Cunningham (R-CA) on bribery charges. The appointment comes one day after all federal judges in Arizona recused themselves [AP report] from the case following an order Wednesday from US District Judge Roslyn Silver advising on the impartiality pitfalls that would be implicated if the case were heard by an Arizona federal judge. Loughner faces the death penalty if convicted, and is being defended by high-profile attorney Judy Clarke, who previously defended "Unabomber" Ted Kaczynski [FBI backgrounder]. He is currently being held in Phoenix without bail [AP report]. While it has not yet been determined where the trial will be held, proceedings are expected to continue January 24 in Phoenix.

Arizona Governor Jan Brewer signed [press release, PDF; JURIST report] emergency legislation [SB1101 materials; text] on Tuesday making it a crime to picket or protest a funeral after Reverend Fred Phelps's Westboro Baptist Church [official website; WARNING: readers may find material at this church website offensive] announced plans to picket the funeral of Christina Green, a 9-year-old girl killed Saturday in the shooting. On Monday, federal prosecutors charged Loughner [criminal complaint, PDF; JURIST report] with murder and attempted murder for his role in Saturday's attack. President Barack Obama has directed that the investigation into the shooting be conducted [press release] by the Federal Bureau of Investigation (FBI) [official website] and coordinated by Director Robert Mueller [official profile]. Authorities arrested Loughner on Saturday and are searching for a possible accomplice [press release]. Due to the polarized political candidate, many suspect that the attack was politically motivated [ABC report]. Giffords has received harsh criticism in Arizona for her vote for the health care reform law [HR 3590; JURIST news archive] and was among those members of Congress who reported threats or vandalism in 2010. Giffords also was an outspoken critic of Arizona's controversial immigration law [SB 1070 text; JURIST news archive]. Ultimately, a clear motive into the shootings has yet to be identified.




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Italy court weakens law temporarily providing immunity for public officials
Julia Zebley on January 13, 2011 12:15 PM ET

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[JURIST] The Italian Constitutional Court [official website, in Italian] on Thursday struck down portions of a law [matierials, in Italian] backed by Prime Minister Silvio Berlusconi [BBC profile; JURIST news archive] that would have granted Berlusconi and other public officials temporary immunity from charges while in office. The law, as passed by the Italian senate [JURIST report] in March, allowed cabinet officials to postpone criminal proceedings against them for up to 18 months if the charges constituted a "legitimate impediment" to performing public duties. After holding hearings [JURIST report] on Tuesday, the court ruled in a vote of 12–3 to modify the law to allow up to a six–month postponement of charges, and gave the court the power to assess the severity of the charges in relation to how much they would disrupt state business. They found the original law in violation of Article Three of the Italian Constitution [text], which provides that "all citizens have equal social status and are equal before the law." The Court declared the original law [La Repubblico report, in Italian], an "unreasonable disparity between the rights of defense and the needs of jurisdiction." The constitutional review of the law was sought by judges in Milan [JURIST report] where Berlusconi is charged in two cases on corruption and tax fraud.

The proceedings mark the third time an immunity law protecting Berlusconi has been submitted to constitutional review. Laws submitted to the Constitutional Court in January 2004 and in October 2009 [JURIST reports] were both determined to be unconstitutional. In April 2010, Italian prosecutors sought to indict Berlusconi [JURIST report] on fraud and embezzlement charges involving his media company. The law granting Berlusconi immunity was approved [JURIST report] by the Chamber of Deputies [official website, in Italian] in February. In January, hundreds of Italy's judges walked out of their courtrooms to protest the passage of legislation that placed strict time limits [JURIST reports] on the trial and appeals process. Both laws have been criticized as being tailored for Berlusconi's benefit. He currently faces corruption and tax fraud trials, both of which have been postponed [JURIST report]. The leader has been previously acquitted of false accounting and bribery, and has had other charges against him dropped [JURIST reports].




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Offshore drilling company files suit to end delay in issuance of drilling permits
Sarah Paulsworth on January 13, 2011 11:03 AM ET

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[JURIST] Officials from the Ensco Offshore Company [official website] appeared in the US District Court for the Eastern District of Louisiana [official website] on Wednesday in connection with a lawsuit [text, PDF] the company filed last year against the moratorium on issuing drilling permits. The moratorium was enacted after the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. ENSCO told the court that although the moratorium has been lifted [JURIST report] officials continue to unreasonably delaying action on deepwater drilling permit applications. ENSCO is seeking a preliminary injunction [Miami Herald Report] compelling the US Department of Interior (DOI) [official website] to "expeditiously" process five pending permit applications the company has filed. Although part of Ensco's lawsuit was dismissed in November [Bloomberg report], complaints over the issuance of permits were retained. The US Department of Justice (DOJ) [official website] denies there are delays [AP report] and say that the additional time is due to new safety precautions to which the DOI must adhere.

In December, DOJ filed suit [complaint text; press release] against units of British Petroleum (BP) [corporate website] and several other companies over the Deepwater Horizon oil spill [JURIST report]. In September, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the offshore drilling moratorium. The judge held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana rejected a request to reinstate the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit similarly declined [JURIST reports]. The DOJ originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon oil spill, which occurred in April of last year, resulted in an estimated 4.9 million barrels of oil flowing into the Gulf of Mexico.




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Mogul Conrad Black returns to court for status hearing
Daniel Richey on January 13, 2011 10:59 AM ET

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[JURIST] Media magnate Conrad Black [CBC profile; JURIST news archive] returned to the US District Court for the Northern District of Illinois [official website] Thursday for a status hearing before judge Amy St. Eve [official biography]. St. Eve will begin the process of deciding whether to free the Canadian-born newspaper tycoon for time served, or re-sentence him on fraud and obstruction of justice charges. Black was released on bond [JURIST report] in July after a June Supreme Court ruling [opinion, PDF, JURIST report] in Black v. United States [Cornell LII backgrounder] constricted the application of the "honest services" doctrine [18 USC § 1346 text] only to cases of bribery and kickbacks. The US Court of Appeals for the Seventh Circuit [official website] then vacated [opinion, PDF; JURIST report] Black's two "honest services"-based convictions, but upheld counts of fraud and obstruction of justice, remanding the case to the Northern District of Illinois for re-sentencing. St. Eve could decide to free Black for time served during his two-year imprisonment, or set a date to determine how much of the remaining years on his original 6 1/2-year sentence he must now serve.

In December, the Seventh Circuit declined [JURIST report] a request by Black for an en banc rehearing to reconsider the two remaining charges. 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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Associated Press, artist settle copyright infringement claims over Obama 'Hope' image
Sarah Paulsworth on January 13, 2011 9:41 AM ET

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[JURIST] The Associated Press (AP) [official website] and artist Shepard Fairey on Wednesday reached a settlement agreement [AP press release] on their opposing copyright infringement claims stemming from Fairey's unauthorized use of an AP photo of incumbent US President Barack Obama [official website]. Fairey's iconic red, white and blue artistic rendering of the AP photo was used on campaign materials during the 2008 presidential election that were captioned with the word "HOPE." According to the agreement, "[n]either side surrenders its view of the legal issues surrounding the dispute." The AP and Fairey have agreed to share the profits of posters and merchandise bearing the "HOPE" image and will collaborate on future projects. However, Fairey is prohibited from using another AP photo without permission from the company. Fairey released a statement saying:
I respect the work of photographers, as well as recognize the need to preserve opportunities for other artists to make fair use of photographic images. I often collaborate with photographers in my work, and I look forward to working with photos provided by the AP's talented photographers.
The agreement also includes a financial settlement, but the details of this were not released.

In February 2009 Fairey filed a lawsuit against AP [NYT report] in the US District Court for the Southern District of New York [official website] seeking a declaration that he did not violate AP's copyright through the use of the AP photo as the basis for an artistic rendering of Obama. AP subsequently filed a countersuit [AP press release] alleging that in fact Fairey had violated its copyrights. According to the AP, the posters and other merchandise based on the AP photo "copy all the distinctive and unequivocally recognizable elements of the [photo] in their entire detail, retaining the heart and essence of [the AP photo], including but not limited to its patriotic theme." In October 2009 Fairey released a statement [text, PDF] in which he admitted taking steps to conceal which photo he used at the basis for his "HOPE" Obama artwork.




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Court denies Texas request for stay of new EPA rules
Drew Singer on January 12, 2011 6:09 PM ET

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[JURIST] The state of Texas on Wednesday failed for the third time in two months at its attempts to block new Environmental Protection Agency (EPA) [official website] regulations governing greenhouse gas emissions. The U.S. Circuit Court of Appeals for the District of Columbia [official website] denied the state's request to block the program [Politico report], which allocates greenhouse gas emission permits under the Clean Air Act [materials]. Texas is the only state in the nation to not allow permits for carbon dioxide permits to be distributed, neither by the federal government nor itself. Texas had also attempted to block the regulations in December in the District of Columbia court and a New Orleans federal appeals court. Those supporting the regulations say that Texas is stalling projects to continue its grandstanding, while the state has indicated that it will continue [Dallas Morning News report] numerous remaining challenges of the new rules.

Last year the US Senate [official website] defeated a resolution [materials] aimed at limiting the ability of the EPA to regulate greenhouse gas emissions [JURIST report] under the Clean Air Act. The measure, introduced by Senator Lisa Murkowski (R-AK) [official website], was defeated by a vote of 53 to 47 with six Democratic senators joining the Republican caucus in supporting the measure. The US Supreme Court 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.




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Supreme Court hears oral argument in 4th Amendment, career criminal cases
Brian Jackson on January 12, 2011 3:45 PM ET

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[JURIST] The US Supreme Court [official website] on Wednesday heard oral argument in two criminal cases, one involving law enforcement creating exigent circumstances for entering a home without a warrant, and the other interpreting a provision of the Armed Career Criminal Act (ACCA) [18 U.S.C. § 924(e)]. In Kentucky v. King [SCOTUSblog materials; argument transcript], the Court will determine whether a lawful, police-created exigent circumstance is a permissible situation for a warrantless entry. Petitioner Hollis King was arrested and sentenced after law enforcement entered his apartment building in pursuit of an accused drug trafficker, whom police had witnessed selling drugs. In the interior of the building, police lost track of the suspect, however the scent of marijuana coming from King's apartment prompted them to seek entrance to that unit. When noises from inside the apartment raised suspicion that the suspect was inside, the police entered and found a substantial amount of drugs, but not the original suspect. The Kentucky Supreme Court [official website], in holding that the warrant exception did not apply [opinion, PDF], announced a two-part test for police-created exigent circumstances, stating that the exigent circumstances exception does not apply if law enforcement created the exigent circumstances in bad faith or if the exigent circumstances were reasonably foreseeable from the police action. Kentucky sought certorari and at oral argument contended that the state Supreme Court's test is inconsistent with the US Supreme Court's repeated jurisprudence that, "the subjective intent of police officers when effecting a warrantless entry is irrelevant."

In Sykes v. United States [SCOTUSblog materials; argument transcript], the Court will determine whether fleeing from law enforcement in a vehicle after being ordered to stop is a violent felony within the meaning of the ACCA. The petitioner, Marcus Sykes, faced an enhanced penalty under the ACCA for his third conviction of a violent felony after the District Court denied his objection that categorizing flight as a violent felony was inconsistent with the Supreme Court's recent ruling in Chambers v. United States [opinion, PDF], which held that failing to report for parole was separate and distinct from escaping from a penal institution, and thus outside of the category of violent felonies listed in the ACCA. Petitioner's argument relied on the same distinction made in Chambers, namely that fleeing from police is a distince category of flight under the relevant Indiana statute [Indiana Code § 35-44-3], and that category falls outside of crimes considered violent felonies for the purposes of the ACCA. The Court will revisit the ACCA later in this term when it hears argument in McNeill v. United States [JURIST report].




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Employee protection board orders reinstatement of US Park Police chief
Sarah Posner on January 12, 2011 1:19 PM ET

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[JURIST] The Merit System Protection Board (MSPB) [official website] on Wednesday ordered [opinion, PDF] the US Department of the Interior (DOI) [official website] to reinstate Teresa Chambers as U.S. Park Police chief after determining her termination was unjustified. The MSPB ruled that Chambers was wrongly discharged in December 2003 for discussing with a Washington Post [official website] reporter that the US Park Police Service [official website] was in need of additional resources. The board ordered the government to reinstate Chambers within 20 days and to pay her the amount owed, including interest and legal fees, within 60 days of the decision. The opinion states,
Because we find, as set forth below, that the agency did not meet its burden of proving by clear and convincing evidence that it would have placed the appellant on administrative leave and removed her in the absence of her disclosures, and that the agency would in fact have taken no action against the appellant in the absence of her protected disclosures, we need not address whether removal is a reasonable penalty in light of the dismissal of charge two by the court.
The DOI has not yet stated whether or not they plan to appeal the decision.

In 2005 Chambers filed a complaint [text, PDF; JURIST report] against the DOI claiming that it illegally destroyed documents regarding her employment as Chief of Police of the US Park Police Force. Chambers claimed that the performance evaluations, which would show that the charges relating to her December 2003 forced resignation were fabricated, have been destroyed. Chambers initially filed a complaint in January 2004 with the Office of Special Counsel (OSC) [official website] alleging that her placement on administrative leave constituted reprisal. The administrative judge dismissed for lack of jurisdiction and Chambers subsequently petitioned for judicial review with the US Court of Appeals for the Federal Circuit [official website].




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Italy court holds hearings on immunity law shielding Berlusconi from trial
Aman Kakar on January 12, 2011 1:18 PM ET

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[JURIST] The Italian Constitutional Court held hearings on Tuesday to determine the constitutionality of a law that grants temporary immunity [materials, in Italian] to Prime Minister Silvio Berlusconi [BBC profile; JURIST news archive] for charges he currently faces in Milan. The law in question was passed in March [JURIST report] and allows cabinet officials to postpone criminal proceedings against them for up to 18 months if the charges constitute a "legitimate impediment" to performing public duties. The constitutional review of the law was sought by judges in Milan [JURIST report] where Berlusconi is charged in two cases on corruption and tax fraud. The court was asked to decide whether the law violates the Italian Constitution [text] by improperly creating a new faculty for cabinet members through law rather than by a constitutional amendment. Additionally, the court must determine if it violates the constitutional principle that all individuals are equal under the law. The 15-judge court is expected to reach its decision on Thursday [AP report].

The proceedings mark the third time an immunity law protecting Berlusconi has been submitted to constitutional review. Laws submitted to the Constitutional Court in January 2004 and in October 2009 [JURIST reports] were both determined to be unconstitutional. In April 2010, Italian prosecutors sought to indict Berlusconi [JURIST report] on fraud and embezzlement charges involving his media company. The law granting Berlusconi immunity was approved [JURIST report] by the Chamber of Deputies [official website, in Italian] in February. In January, hundreds of Italy's judges walked out of their courtrooms to protest the passage of legislation that placed strict time limits [JURIST reports] on the trial and appeals process. Both laws have been criticized as being tailored for Berlusconi's benefit. He currently faces corruption and tax fraud trials, both of which have been postponed [JURIST report]. The leader has been previously acquitted of false accounting and bribery, and has had other charges against him dropped [JURIST reports].




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Federal judge rules Washington primary election system constitutional
Maureen Cosgrove on January 12, 2011 1:09 PM ET

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[JURIST] A federal judge on Tuesday ruled [opinion, PDF] that Washington state's "top-two" primary election system is constitutional. Judge John Coughenour of the US District Court for the Western District of Washington [official website] held that voters were not confused [Seattle Times report] by the current version of Washington state's ballot, which allows candidates to list which political party they prefer even if that party does not back the candidate. The top two vote-getters in a primary then advance to the general election regardless of party affiliation, according to Initiative 872 [text, PDF], which was passed in 2004. In the court opinion, Coughenour enumerated factors suggesting that Washington's implementation of its primary election ballot would not confuse the reasonable, well-informed electorate:
Washington's ballot contains a prominent, unambiguous, explicit statement that a candidate's party preference does not imply a nomination, endorsement, or association with the political party. The ballot repeatedly states that candidates merely "prefer" the designated parties. Ballot inserts and the Voters' Pamphlet further explain the new system. Washington employed a widespread education campaign via various media outlets to inform voters about the new system. And Washington voters themselves, not simply their elected representatives, approved I-872.
Furthermore, the court stated that the ballot was "consistent with the Supreme Court's conception of a constitutional ballot." The court also noted that the evidence of voter confusion offered by the political parties is both irrelevant and unpersuasive, and that the constitutionality of the ballot must not be considered from the viewpoint of an unreasonable, uninformed voter. David McDonald, attorney for the Democratic Party, a joining plaintiff, said he is certain the decision will be appealed to the US Court of Appeals for the Ninth Circuit [official website], with the possibility of being heard by the US Supreme Court [official website; JURIST news archive].

California is considering a similar "top-two" approach for primary elections. California congressional candidates and voters filed a lawsuit [complaint, PDF] in July 2010 seeking to enjoin enforcement [motion, PDF] of Proposition 14 [text], which alters the primary election system, creating an open primary where only the top two vote-getters would advance to the general election. Proposition 14, based largely on the system used in Washington, was approved by voters [JURIST report] in June 2010 and changes elections to create a system in which all candidates for a state or federal office except for president would run in a single primary regardless of political affiliation. In 2008, the Supreme Court upheld Washington's primary election system [JURIST report] as constitutional against a First Amendment [Cornell LII backgrounder] challenge, overturning a contrary decision by the Ninth Circuit. Louisiana has a similar system, but, under that system, a candidate who garners over 50 percent of the vote in the primary will forgo the general election.




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Supreme Court stays Texas execution
Matt Glenn on January 12, 2011 12:09 PM ET

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[JURIST] The US Supreme Court [official website] voted Tuesday to stay the execution [JURIST news archive] of convicted murderer Cleve Foster [Texas Department of Criminal Justice profile; case materials] until it decides whether to grant his petition for certiorari. Foster, a former Army recruiter, denies allegations [AP report] that he shot and killed a 30-year old woman in 2002 and then hid her body in a ditch. Foster claims that he was convicted due to ineffective assistance from his lawyer and that a blood-splatter test would exonerate him. Foster's petition to the Supreme Court follows orders by judges in the Texas Court of Criminal Appeals [official website] dismissing Foster's petition for habeas corpus [order materials] and denying a motion to reconsider its refusal to hear Foster's habeas claim. Foster's execution had been scheduled for Tuesday night. There is no word on when the Supreme Court will decide whether to hear Foster's case.

Controversy has surrounded the use of the death penalty in the US. On Tuesday, Illinois' state senate voted to abolish the death penalty [JURIST report] in that state after the Illinois House voted to do the same [JURIST report] last Friday. It is not clear, however, whether Illinois Governor Pat Quinn will sign the bill into law. Last August, the US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia, police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [advocacy website] Executive Director Sarah Totonchi argues [JURIST commentary] that "'Troy Davis' case illustrates that U.S. courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished."




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Illinois Senate votes to abolish death penalty
Daniel Makosky on January 12, 2011 12:04 PM ET

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[JURIST] The Illinois Senate [official website], sitting in a lame-duck session, on Tuesday passed a bill abolishing the state's death penalty [JURIST news archive]. The amended bill (SB3539) [amendment, text], approved [JURIST report] by the House last week, passed 35-22 [Chicago Tribune report] and now proceeds to Governor Pat Quinn [official website] for his signature or veto. It marks the first time the state legislature has voted to abolish the death penalty since former Governor George Ryan put a moratorium on it 10 years ago. Supporters of the bill express concern over the possibility of innocent people being executed, especially after some people on death row have later been exonerated. Opponents argue, alternatively, that the threat of the death penalty is an important tool for law enforcement officials.

The death penalty remains a controversial issue worldwide. According to an Amnesty International (AI) [advocacy website] report [text, PDF; JURIST report], the number of countries using the death penalty dropped in 2009, but more than 700 people were executed in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. Last August, US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis, who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [official website] Executive Director Sarah Totonchi argues [JURIST commentary] said that "Troy Davis' case illustrates that US courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished."




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Pakistani men sentenced to life in prison for blasphemy
Eryn Correa on January 12, 2011 11:13 AM ET

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[JURIST] A Pakistani anti-terrorism court in the province of Punjab on Tuesday sentenced two men to life in prison for violating Pakistan's blasphemy law [text; JURIST news archive]. Mohammad Shafi and his son Mohammad Aslam were convicted in the city of Dera Ghazi for having torn down and trampled a poster advertising a gathering marking the birthday of Prophet Muhammad [JURIST news archive] that had been posted on a pillar outside their grocery store. This is the first time life imprisonment [BBC report] has been levied for blasphemy charges, which generally carries a mandatory death sentence. The men's lawyer says that he plans to appeal the case to the Lahore High Court [official website], believing that his clients' sentence is motivated by sectarian differences.

Blasphemy laws were introduced in 1986 as a way of protecting Muslim beliefs from insults, however, critics argue that they have recently been used to persecute those of minority faith, an argument that has had serious consequences. Last week, the governor of Pakistan's Punjab province, Salman Taseer, was shot and killed [JURIST report] by one of his own security guards, apparently because of his opposition to Pakistan's blasphemy law. Further controversy surrounding Pakistan's blasphemy law has recently been reignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad during an argument with other women in her village last year.




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Federal judge rejects Algerian Guantanamo detainee's habeas petition
Daniel Makosky on January 12, 2011 11:13 AM ET

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[JURIST] A federal judge in the US District Court for the District of Columbia [official website] on Tuesday denied [opinion, PDF] the habeas corpus petition of Guantanamo Bay [JURIST news archive] detainee Abdul Razak Ali. The judge rejected Razak Ali's claim of mistaken identity and ruled that US officials acted on sufficient credible evidence of his association with al Qaeda [JURIST news archive] operative Abu Zubaydah when detaining him in March 2002. In his ruling, US District Judge Richard Leon cited:
...[the] obvious and common-sense inference that a terrorist leader like Abu Zubaydah would not tolerate an unknown and untrusted stranger to dwell in a modest, two-story guesthouse for two weeks with himself and ten or so of his senior leadership, while they are preparing for their next operation against US and Allied forces...
Considering the circumstances in addition to available supporting evidence, Leon concluded that Razak Ali "more likely than not" worked in conjunction with Abu Zubaydah.

The district court has ruled in favor of the government in 20 habeas corpus cases [JURIST news archive], while Guantanamo detainees have prevailed in 38. In July, the court granted the habeas petition [JURIST report] of Adnan Farhan Abdul Latif [NYT profile] and ordered his immediate release. A court of appeals a week earlier overturned a decision granting habeas relief [JURIST report] to detainee Mohammed al-Adahi, ruling that the evidence, viewed as a whole, supported the conclusion that al-Adahi was part of al Qaeda. Last month, lawyers for Abu Zubaydah asked Polish prosecutors to investigate claims that he was abused [JURIST report] in a secret CIA prison [JURIST news archive] in the country.




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Arizona passes emergency law prohibiting funeral protests
Matt Glenn on January 12, 2011 10:56 AM ET

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[JURIST] Arizona Governor Jan Brewer signed [press release, PDF] emergency legislation [SB1101 materials; text] Tuesday making it a crime to picket or protest a funeral. The move comes after Reverend Fred Phelps's Westboro Baptist Church [WARNING: readers may find material at this church website offensive; JURIST news archive] announced plans to picket the funeral of Christina Green, a 9-year-old girl killed Saturday in the shooting that injured Representative Gabrielle Giffords (D-AZ) and killed federal judge John Roll. The law makes it a misdemeanor "to cause picketing or other protest activities to occur within three hundred feet of the property line of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of a burial or funeral service at that place." The bill, which received unanimous support from both houses of the Arizona legislature, imposes up to six months in prison for violators and fines of up to $2,500. A spokesperson for Westboro Baptist Church said the group plans to protest the funeral despite the new law [Arizona Daily Sun report] and that she does not believe the law will affect the group since its members do not plan to enter the three-hundred-foot boundary. As emergency legislation, the law took immediate effect upon Brewer's signing.

On Monday, federal prosecutors charged Jared Loughner [criminal complaint, PDF; JURIST report] with murder and attempted murder for his role in Saturday's attack. The Westboro Baptist church has faced ongoing legislation and litigation over its practice of picketing high-profile and military funerals. In October, the US Supreme Court [official website] heard oral arguments [JURIST report] in Snyder v. Phelps [SCOTUSblog backgrounder] regarding the extent to which the First Amendment [text] protects picketing at funerals. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that such activity is protected speech, overturning a lower court judgment [JURIST report] awarding almost $11 million to the family of a Marine that filed suit [JURIST report] after Phelps and his church picketed the Marine's funeral. In 2008, the US Court of Appeals for the Sixth Circuit upheld [JURIST report] an Ohio law [ORC 3767.30 text] substantially the same as the one passed in Arizona Tuesday.




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Supreme Court hears arguments on personal jurisdiction over foreign companies
Andrea Bottorff on January 12, 2011 10:17 AM 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 J. McIntyre Machinery v. Nicastro [oral arguments transcript, PDF; JURIST report] on the ability of a state, under the Fourteenth Amendment's Due Process Clause [Cornell LII backgrounder], to exercise specific personal jurisdiction over a foreign company that targets the US market and sells its product in the US. The case involves an accident where machinery manufactured by a British company and sold in the US by an unaffiliated distributor injured a man in New Jersey. The Supreme Court of New Jersey [official website] held [opinion, text] last year that a foreign manufacturer that targets the US market for sales of its product may be subject to specific personal jurisdiction in state court if the injury in a products-liability case occurs in that state. Counsel for the petitioner argued that New Jersey lacked personal jurisdiction over the company because the company "did not direct any activity at residents of New Jersey either itself or by directing its distributor MMA to do so and had no awareness or knowledge that the distributor took the action that it did toward New Jersey." Counsel for the respondents argued that since the British company purposely availed itself of the entire US market, which included New Jersey, then the company is subject to specific personal jurisdiction in New Jersey.

In Goodyear v. Brown [oral arguments transcript, PDF; JURIST report], the Court heard arguments [day call, PDF; merit briefs] on whether a company is subject to a state's general personal jurisdiction in a products-liability case if it does not have any connections to the state, but where foreign subsidiaries introduced the product to the forum. The case involves the death of two North Carolina youths in France when a tire made in Turkey failed and the bus in which they were riding crashed. The North Carolina Court of Appeals [official website] ruled [opinion, PDF] that the defendants were subject to personal jurisdiction. Counsel for the petitioner argued that finding the foreign company subject to a lawsuit in North Carolina would have widespread consequences for other companies:

Under this Court's cases, the mere sale of a defendant's products in a State does not permit the State to reach out to assert judicial power over all that defendant's worldwide conduct. If that were permissible, every significant seller of products would be subject to suit everywhere on any claim arising anywhere.
Counsel for the respondent argued that the "interdependent relationship" between Goodyear and the foreign companies created a connection to North Carolina based on "continuous and systematic contacts."




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National Commission on BP Deepwater Horizon oil spill releases final report
Eryn Correa on January 11, 2011 5:48 PM ET

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[JURIST] The National Commission on the BP Deepwater Horizon Oil Spill[official website] released its full final report [text] on Tuesday, tracing the deeper root causes of the spill and recommending steps to avoid future incidents. The report highlights mistakes made by British Petroleum (BP), as well as its partners Haliburton and Transocean [corporate websites], as the starting point that allowed the spill to take place, and finishes with recommendations based on those oversights. The recommendations include instituting fees for off-shore drilling leases that would help to fund a safety agency within the Department of the Interior (DOI) [official website] for the regulation of off-shore drilling. In addition, the commission advises the creation of a safety institute lead by the oil industry that can more closely regulate those practices. The commissioners conceded that they can not prevent another oil spill from occurring, "but when exploration occurs, particularly in sensitive environments like the Gulf of Mexico or the Arctic, the country has an obligation to make responsible decisions regarding the benefits and risks". Several law-makers have stated that they will commence legislation based on these recommendations. Halliburton has rejected [press release] the report's findings, saying that the commission had "selectively omitted information provided to it" by the company and had relied on false assumptions about cement testing.

The report comes as another count against BP's practices leading up to the spill. In December, The US Department of Justice (DOJ) [official website] filed suit [JURIST report] Wednesday against units of (BP) and several other companies over the April Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. 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 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. The report recommends that 80% of these funds collected go to restoration efforts in the Gulf of Mexico.




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China fails to deliver on human rights promises: HRW
Julia Zebley on January 11, 2011 1:12 PM ET

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[JURIST] China has failed to achieve the goals it set out in its first national human rights plan, Human Rights Watch (HRW) [advocacy website] declared in a report [text] released on Tuesday. In its assessment of the government's National Human Rights Action Plan of China (NHRAP) [text], HRW decried China's continued use of torture, illegal detentions, and the government's overuse of the death penalty. HRW also noted China's lack of commitment in cooperating with the international human rights community, as well as a number of human rights issues not slated for improvement in the NHRAP. The rights group did praise China for working to eradicate poverty, although conceded that further steps should be made.
At the same time as the Chinese government has pointed to the NHRAP as evidence of its commitment to human rights, the government has systematically continued to violate many of the most basic rights the document addresses. It has taken unambiguous steps to restrict rights to expression, association, and assembly. It has sentenced high–profile dissidents to lengthy prison terms on spurious state secrets or 'subversion' charges, expanded restrictions on media and internet freedom as well as tightened controls on lawyers, human rights defenders, and nongovernmental organizations. It has broadened controls on Uighurs and Tibetans, and engaged in increasing numbers of enforced disappearances and arbitrary detentions, including in secret, unlawful detention facilities known as 'black jails.'
The report also cited China's reaction to Nobel peace prize winner Liu Xiaobo [BBC profile; JURIST news archive] as a prominent concern. In a position paper [press release] published in September 2010, the Chinese government claimed to have increased human rights [JURIST report] by heightening Internet freedoms and improving civil and political rights.

China has had a well–known struggle with international criticism of its human rights record [JURIST news archive]. In April 2009, the Information Office of the State Council [official website] published the NHRAP [JURIST report], which aimed to protect ethnic minorities, promote gender equality, guarantee suspects the right to an impartial trial, and prohibit illegal detentions and the use of torture to extract confessions from suspects. China also sought to provide basic nationwide health care, slow its greenhouse-gas emissions, and protect "normal religious activities." In February 2009, the Chinese delegation to the UN Human Rights Council (UNHRC) [official website] defended [JURIST report] China's human rights record while presenting a report [text, PDF] in compliance with the UNHRC's Universal Periodic Review (UPR) [official website] process. Ambassador Li Baodong said that China has been taking steps to improve its legal system, promote democracy, and encourage non-governmental organizations.




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Supreme Court denies tax exemption for medical residents
Sarah Posner on January 11, 2011 1:11 PM ET

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[JURIST] The US Supreme Court [official website] on Tuesday ruled [opinion, PDF] 8-0 in Mayo Foundation for Medical Research v. United States [SCOTUSblog backgrounder] that medical residents are not classified as students for the purpose of federal tax exemption. The Mayo Foundation for Medical Education and Research [official website] had sought to exempt stipends paid to doctors during the residency portion of their medical training from the taxes on wages for employees required by the Federal Insurance Contributions Act (FICA) [text]. The US Treasury Department [official website] argued that the Social Security Act does not treat medical residents as students, and therefore they should not be eligible for tax exemptions under FICA. The court found that the government's interpretation of the two statues was reasonable:
We do not doubt that Mayo's residents are engaged in a valuable educational pursuit or that they are students of their craft. The question whether they are "students" for purposes of [FICA] § 3121, however, is a different matter. Because it is one to which Congress has not directly spoken, and because the Treasury Department's rule is a reasonable construction of what Congress has said, the judgment of the Court of Appeals must be affirmed.
The case was decided by a unanimous ruling in which Justice Kagan took no part, as she was the US Solicitor General during parts of the case's history.

Medical students working for the Mayo Clinic in Rochester, Minnesota, receive stipends from the foundation and the University of Minnesota [academic website] for the medical and patient care services they provide. The district court ruled that residents qualify for the exemption and ordered the US Treasury Department to refund FICA taxes paid during the second quarter of 2005 to both Mayo and the university. The US government appealed the district court's ruling to the US Court of Appeals for the Eight Circuit. The circuit court reversed [opinion, PDF] the lower court's holding, concluding that the judiciary must "defer to the regulation limiting this exception to students who are not full-time employees because it is a permissible interpretation of the statute."




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New York high court dismisses case against bond insurer
John Paul Putney on January 11, 2011 1:00 PM ET

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[JURIST] The New York Court of Appeals [official website] on Tuesday dismissed [opinion] a lawsuit against bond insurance company MBIA [corporate website] alleging breach of contract brought by several of the world's largest financial institutions. The lawsuit challenged the break-up of MBIA into two separate lines of bond insurance. MBIA, historically the largest guarantee insurer of municipal bonds and other public entity securities, sought to separate its municipal bond obligations from its structured finance obligations, including mortgage-backed securities and collateralized debt obligations. Major financial institutions including JPMorgan Chase, Citigroup, Bank of America, Morgan Stanley, Merrill Lynch, Barclays, Wachovia, UBS, and HSBC [corporate websites] challenged the split on the contractual grounds, arguing that it amounted to a fraudulent conveyance and left the divided MBIA undercapitalized and unable to pay on the structured-finance product policies [CNBC report] written by MBIA. The court dismissed the lawsuit, concluding:
For their breach of contract claim, plaintiffs allege that MBIA Insurance breached an implied covenant of good faith and fair dealing in its insurance policies. Plaintiffs do not claim that MBIA Insurance has failed to make any payment due under the policies, but instead contend that the company has frustrated an implicit purpose of obtaining the policies, namely "to enhance the value and credit rating" of the covered structured finance products. However, since this alleged purpose is nowhere reflected in the policies, it cannot serve as the basis for a claim of breach of contract or breach of the implied covenant of good faith and fair dealing. ... In effect, plaintiffs seek an advisory opinion premised on future events that are beyond defendants' control and thus are speculative.
There are currently two other lawsuits challenging the split that have yet to be resolved.

Financial institutions, as well as both private and municipal issuers, have recently faced securities-related enforcement actions. In August, the Securities and Exchange Commission (SEC) [official website] charged [order, PDF] the state of New Jersey with securities fraud for failing to disclose to municipal bond investors that it was underfunding two of the state's largest pension plans [JURIST report]. Also in August, a federal judge rejected a $75 million settlement [JURIST report] reached between Citigroup and the SEC to resolve charges of misleading investors [JURIST report] about Citigroup's exposure to sub-prime mortgage-related assets. In July, Goldman, Sachs & Co.. [official website; JURIST news archive] agreed to a $550 million settlement [text, PDF] with the SEC to resolve charges [press release] that they marketed a subprime mortgage product and made misleading statements and omissions to investors in early 2007.




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Supreme Court limits Chapter 13 bankruptcy deductions in first Kagan opinion
Zach Zagger on January 11, 2011 11:30 AM ET

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[JURIST] The US Supreme Court [official website] on Tuesday ruled [opinion, PDF] 8-1 in Ransom v. FIA Card Services, N.A. [SCOTUSblog backgrounder] that debtors who apply for Chapter 13 bankruptcy cannot use a car payment as a deduction from their repayment plan if the debtor has paid off the automobile. The opinion was the first authored by Justice Elena Kagan [JURIST news archive], who joined [JURIST report] the court in August after serving as solicitor general in the Obama administration and as Dean of Harvard Law School. The case dealt with Chapter 13 bankruptcy under 11 USC § 1301 [text] where a debtor repays creditors according to a court-approved plan. The US bankruptcy code [11 USC § 707(b)(2)] uses a statutory formula called the "means test" which allows debtors deduct "applicable" monthly expenses from their monthly income to determine a disposable income to repay creditors. The debtor in this case, Jason Ransom, had attempted to mark as a deduction the maximum amount allowed for car payments for a car that he owned outright. In the opinion of the court, Kagan interpreted the term "applicable" in the bankruptcy code to mean a deduction is allowed "only if that deduction is appropriate for him" preventing Ransom from marking the car as a deduction since he was no longer making payments on it.

The court's opinion upholds the decision of the US Court of Appeals for the Ninth Circuit, which ruled [opinion, PDF] that the bankruptcy court may not allow such deductions. The Supreme Court heard oral arguments [transcript, PDF; JURIST report] in October. Counsel for Ransom argued that, "[i]n 2005 when Congress passed the Bankruptcy Act, it made a policy decision to limit judicial discretion on a case-by-case basis in the area of reasonable and necessary expenses." Counsel for the respondent argued that, "[t]he Bankruptcy Code precludes an above-median income debtor like Petitioner from shielding from his creditors $471 a month for a car payment that he does not have." The US government argued as amicus curiae on behalf of the respondent.




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Rights group asks court to resume consideration of 'Don't Ask Don't Tell' appeal
Ashley Hileman on January 11, 2011 11:00 AM ET

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[JURIST] The Log Cabin Republicans [advocacy website] on Monday urged the US Court of Appeals for the Ninth Circuit [official website] to resume proceedings in their lawsuit against the military's "Don't Ask, Don't Tell" (DADT) policy [10 USC § 654 text; JURIST news archive]. The advocacy group filed a response [text, PDF] to a motion to delay that was recently filed by the Obama Administration [JURIST report] in US v. Log Cabin Republicans [case materials]. In its response, the group argues that the court "should reject the government's constant attempts at delaying and avoiding the issues" and calls the motion "another effort by the government to avoid filing a brief attempting to defend the indefensible." Log Cabin Republicans Executive Director R. Clarke Cooper said that the government would like the case to simply disappear [press release]:
The Obama administration’s continued defense of this failed and unconstitutional policy is a mystery. ‘Don’t Ask, Don’t Tell,’ was rejected by Congress, by the Joint Chiefs of Staff, and most notably by the American people. It is time for the President to stand by his commitment and end this policy of discrimination, removing the threat and specter of discharge from thousands of patriotic servicemembers.
The group said that it would have been willing to agreed to a delay in the proceedings if the government, in return, agreed to stop investigations and discharges during that period, but that gay servicemembers continue to be dissuaded from making their sexuality known.

The Don't Ask, Don't Repeal Act of 2010 [HR 2965 materials] was signed into law [JURIST report] in December. However, DADT remains 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. Earlier in December, 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. Additionally, in November, 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]. 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 trial begins for anti-Castro militant
Zach Zagger on January 11, 2011 10:30 AM ET

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[JURIST] The trial [court materials] of anti-Castro Cuban militant Luis Posada Carriles [BBC profile; JURIST news archive] began Monday on charges of lying to federal immigration officials that could carry a sentence of up to 60 years in prison. He is charged [Miami Herald report] before the District Court for the Western District of Texas [official website] with two counts of perjury and nine counts of making false statements regarding his involvement in the bombing of tourist attractions in Havana [Washington Post report] in 1997 and the 1976 bombing of a Cuban airliner [ASN backgrounder]. Declassified documents show that Posada, who has a history [AFP report] of anti-Fidel Castro activism, worked for the CIA [NYT report] between 1965 and 1976. Venezuela and Cuba have sought Posada's extradition under the International Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation [texts] on charges related to the bombings. Posada denies having any involvement with the airline bombing but has equivocated about his involvement in the Havana bombings.

In January 2009, Venezuela renewed its extradition request [JURIST report] in hopes that the Obama administration would be more open to it. Posada was convicted in Panama for the attempted assassination of Fidel Castro but was pardoned [Miami Herald report]. Citing the UN Convention Against Torture [text], the US has refused to extradite Posada in the past [JURIST report], saying that he cannot be sent to either Venezuela or Cuba because he is likely to be tortured if extradited to either country. Citing Abu Ghraib and Guantanamo Bay [JURIST news archives], Cuba countered that claim during a November 2008 UN Security Council meeting [press release], saying that while the likelihood of torture in Cuba is speculative, the likelihood of torture in the US is not.




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DeLay receives three-year sentence for money laundering and conspiracy
Matt Glenn on January 11, 2011 9:37 AM ET

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[JURIST] A judge for the 331st Criminal District Court [official website] of Texas sentenced former US House Majority Leader Tom DeLay (R-TX) [JURIST news archive] to three years in prison and ten years of probation Monday following DeLay's November conviction [JURIST report] on money laundering and conspiracy charges. Judge Pat Priest sentenced DeLay to prison [WP report] on the conspiracy charge and gave DeLay probation in lieu of a five-year prison sentence for money laundering. The charges stemmed from $190,000 donated by corporate interests to DeLay's political action committee (PAC) during the 2002 midterm election, which was allegedly funneled through the Republican National Committee (RNC) [party website] for use in state elections. The RNC then distributed the money to seven legislative candidates at DeLay's direction in order to circumvent a state election law [Tex. Elec. Code § 253.094] forbidding corporate contributions to political campaigns, according to prosecutors. DeLay, who denies wrongdoing and claims his prosecution was politically motivated, secured his release by posting a $10,000 bond and plans to appeal [Austin American-Statesman report] his conviction.

In August, DeLay's lawyer confirmed that a US Department of Justice (DOJ) criminal probe into DeLay's association with lobbyist Jack Abramoff [JURIST news archive] had been dismissed without charges being filed [JURIST report]. The investigation lasted six years and included grand jury testimony from former aides as well as a review of more than 1,000 documents and e-mails from DeLay's office. In August 2008, a Texas appeals court allowed the money laundering indictment [JURIST report] against DeLay's associates to stand. In 2007, a Texas appeals court ruled against reinstating a charge of conspiracy to violate the state's election law against DeLay and his two associates. After he was indicted, DeLay stepped down as House majority leader and later resigned from Congress [JURIST reports].




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HRW urges greater efforts to close Guantanamo
Aman Kakar on January 11, 2011 8:03 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday urged [press release] President Barack Obama make greater efforts to close Guantanamo Bay [JURIST news archive] despite congressional opposition. In the press release, issued on the eve of the facility's ninth anniversary in operation [JURIST This Day at Law report], HRW recommended that Obama should escalate efforts to prosecute Guantanamo detainees in federal court or return and resettle them in order to meet US obligations under international law. The rights organization recognized Obama's commitment in closing the facility, but cited the continued practices of indefinite detention, use of military commissions [JURIST news archive] instead of federal courts, insufficient efforts to repatriate or resettle detainees and not acting forcefully enough to overcome obstacles from Congress as failures of the administration. HRW argued:
Closing Guantanamo is as essential today as it was when President Obama took office in 2009. But Obama can't keep hoping that a political consensus will form and Congress will make it easy - he has to act to make it happen. Obama still has the authority he needs to bring Guantanamo detainees to justice in US courts or to send them home. If he truly believes that Guantanamo is a scar on America's reputation, he should assert his authority now.
The press release went to outline the actions and policies already taken by the Obama administration to close Guantanamo but noted that they had not been fully carried out. These included the missed January 2010 deadline to close the facility, failed efforts to relocate detainees to a prison in Illinois, the continued use of military commissions to try detainees and the limited use of federal courts [JURIST reports] despite a stated preference for them.

As noted by HRW, Obama's efforts to close Guantanamo have faced ongoing opposition from Congress. On Friday, Obama signed a bill barring the transfer of Guantanamo detainees [JURIST report] to the US for trial. The legislation authorized funding for defense interests abroad, military construction and national security-related energy programs and barred the use of funds to transfer detainees into the US and limited funds available for transfers to foreign countries. The administration plans to seek the repeal of these restrictions and opposes the extension or expansion of them in the future. In June 2009, the US House of Representatives denied an Obama administration request for $60 million [JURIST report] to fund the closure of the Guantanamo Bay detention facility, and required the president to submit a detailed plan to Congress documenting the costs and risks of transferring a detainee to the US for trial or detention at least two months before the detainee is to be transferred. 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]. There are currently 178 detainees awaiting transfer from Guantanamo.




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Supreme Court hears arguments on disclosure of adverse drug reactions, water rights
Ann Riley on January 10, 2011 4:12 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 Matrixx v. Siracusano [oral arguments transcript, PDF; JURIST report] on a pharmaceutical company's obligation under §10(b) of the Securities Exchange Act and SEC Rule 10b-5 [texts] to disclose reports of patients' adverse reactions when the number of incidents is statistically insignificant. The US Court of Appeals for the Ninth Circuit [official website] held [opinion, PDF] that the inference that Matrixx withheld reports of patients' adverse reactions intentionally or with deliberate recklessness was as compelling as if they withheld the information innocently, and therefore the plaintiff had met the scienter pleading requirement of Rule 10b-5. Counsel for the petitioner argued that the reports do not establish any reliable facts about the drug, and that a duty to report these results would unfairly affect the company:
A securities fraud claim requires both materiality and scienter, and neither of those is established unless the company has knowledge of facts establishing a reliable basis for inferring that the drug itself is the cause of the reported event. Absent information like that, there is neither materiality nor scienter under the securities laws, until there's reliable evidence of a causal link between the product and the event...We have to be very careful about creating a rule through our interpretation of materiality that would require companies in advance to disclose the fact that a baseless, false allegation about the company is going to come out.
Counsel for the respondent argued that there is an analytical distinction between the importance of information and the intent to deceive. "The information might be important for investors, but it could very well be that the people making the disclosures don't have the requisite scienter because there is an absence of any plausible relationship." The respondent further noted that materiality is determined by the totality of the information available to investors.

In Montana v. Wyoming and North Dakota [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether Wyoming officials breached an agreement between the states by failing to keep consumption of water from the Tongue and Powder rivers within the agreement's limits. Montana and North Dakota contend that Wyoming violated the Yellowstone River Compact [text, DOC; materials], which allocates water rights to the two tributaries of the Yellowstone River, by allowing the construction of water storage facilities and the expansion of irrigation. In 2008, the court appointed [order, PDF; JURIST report] a special master [Cornell LII backgrounder] to investigate and oversee the lawsuit, which was filed directly in the Supreme Court as it has original jurisdiction [Article III, Section 2 text] and exclusive jurisdiction [28 USC 1251 text] over cases in which a state is a party. Counsel for Montana argued that:

First, the plain language of the compact preserves the water supply each State was receiving as of 1950. Second, contrary to the compact's purposes, the master's interpretation would allow individual water users to alter those amounts. And third, the master's policy determinations about efficiency add ambiguity to the principles underlying a century of western water law.
Counsel for Wyoming argued that the state has a classic water right to divert water for the purpose of irrigation, as "the irrigation right is a general right."




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UN SG renews support for Lebanon tribunal
Megan McKee on January 10, 2011 3:46 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Sunday renewed his support for the UN-backed Special Tribunal for Lebanon (STL) [official website], which is investigating the 2005 murders of former Lebanese Prime Minister Rafik Hariri [JURIST news archive] and 22 others. Ban met [UN News report] with current Prime Minister Saad Hariri, son of the slain Prime Minister, in New York to emphasize the important role the STL plays in addressing impunity in the country. The Secretary General and the Prime Minister also addressed regional and other efforts to promote stability, including various aspects of Security Council resolution 1701 [text], which ended the 2006 war between Israel and Hezbollah [CFR backgrounder; JURIST news archive], particularly ongoing Israeli airspace violations.

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




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Supreme Court grants certiorari in seven cases
Erin Bock on January 10, 2011 2:40 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Friday granted certiorari [order list, PDF] in seven cases. In Erica P. John Fund, Inc. v. Halliburton Co. [docket; cert. petition, PDF], the court will determine whether investor losses need to be proven by a preponderance of the evidence at the class certification stage prior to full discovery in order for the class action lawsuit to proceed. The United States Court of Appeals for the Fifth Circuit held [opinion, PDF] that this was procedurally proper. The Fifth Circuit also determined that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption laid out in Basic v. Levinson [opinion].

In Lafler v. Cooper [docket; cert. petition, PDF] and Missouri v. Frye [docket; cert. petition, PDF], the court will determine how poor legal advice between attorneys and clients regarding plea bargaining should impact subsequent guilty verdicts. In Lafler v. Cooper, Anthony Cooper was convicted of assault with intent to murder for shooting a woman in her thigh and buttocks after his attorney advised him to not take a plea offer in the belief that there could be no finding of the requisite intent. The US Court of Appeals for the Sixth Circuit held [opinion, PDF] that the attorneys advice was unconstitutional as it amounted to ineffective assistance of counsel. In Missouri v. Frye, Galin Frye was offered two deals by prosecutors during proceedings for driving with a revoked license, but Frye's attorney never informed his client about the offers and Frye pleaded guilty. The Missouri Court of Appeals held that the attorney's failure to inform his client about the plea offers amounted to unconstitutional ineffective assistance of counsel.

In United States v. Jicarilla Apache Nation [docket; cert. petition, PDF], the court will determine whether attorney-client privilege allows for the United States to deny discovery requests for communications between the United States and its attorneys when those communications concern management of an Indian trust and there was no claim of a specific competing interest. The Court of Appeals for the Federal Circuit held [opinion, PDF] that the privilege did not apply and upheld the lower court's order of production.

In Nevada Commission on Ethics v. Carrigan [docket; cert. petition, PDF], the court will determine whether the First Amendment allows states to prevent government officials from voting on matters in which they have or appear to have a personal conflict. The Nevada Supreme Court, citing Citizens United v. Federal Election Commission [opinion, PDF], held [opinion, PDF] that preventing an official from casting such a vote violated the First Amendment because voting by an elected public officer on public issues is protected speech.

In Sorrell v. IMS Health, Inc. [docket; cert. petition, PDF], the court will determine whether state laws restricting or preventing the sale of nonpublic prescription data to drug companies for marketing purposes without the prescriber's consent is a violation of First Amendment commercial speech. The United States Court of Appeals for the Second Circuit, also citing Citzens United, held [opinion, PDF] that the law was an unconstitutional regulation of commercial speech.

Lastly, in McNeill v. United States [docket; cert. petition, PDF], the court will determine how retroactive sentencing laws affect the definition of a "serious drug offense" under the Armed Career Criminal Act (ACCA) [18 U.S.C. section 924]. Clifton McNeill was arrested in 2007 after police discovered a firearm and 3.1 grams of cocaine during a search incident to arrest for eluding a traffic stop. In light of previous drug convictions in 1992 and 1995, McNeill was convicted under the ACCA. The previous convictions and sentencing structure met the definitions of a "serious drug offense" at the time they were committed, however, the statutory sentences for those offenses were reduced in later years and do not currently meet the ACCA definition. The United States Court of Appeals for the Fourth Circuit held [opinion, PDF] that the ACCA still applied regardless of the subsequent statutory changes.




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Canada appeals court rules refusal to marry same-sex couples unconstitutional
LaToya Sawyer on January 10, 2011 2:38 PM ET

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[JURIST] The Saskatchewan Court of Appeals [official website] on Monday ruled [opinion text, PDF; case summary] that refusal by provincial marriage commissioners to marry same-sex couples violates § 15(1) of the Charter of Rights and Freedoms [text]. The decision invalidates a proposed amendment to Saskatchewan's Marriage Act of 1995 [text; PDF] that would allow for marriage commissioners to refuse to solemnize same-sex marriages in service to their of religious beliefs and would exclude the participation of commissioners in office before Parliament legalized same-sex marriage in 2005. The court expressed that its opinion protects the rights of gay and lesbian couples :
[The amendment], if enacted, will create situations where a same-sex couple contacting a marriage commissioner for the purpose of getting married will be told by the commissioner that he or she will not provide the service requested. This is not a merely theoretical concern. ... Both the Grandfathering Option and the Comprehensive Option will have the effect of drawing a distinction based on sexual orientation. ... Gay and lesbian individuals will be treated differently than other people who wish to be married. The differential treatment will be negative and will flow directly from their sexual orientation.
Furthermore, the court noted that because most other marriage officials are of religious backgrounds and do not condone same-sex unions, allowing marriage commissioners to refuse to marry same-sex couples would destroy all opportunities for gay and lesbian couples to have access to the institution of marriage.

Since Canada legalized the marriage of same-sex couples [JURIST report] in 2005, the issue has been the topic of popular debate. Despite resistance to the law, in 2006, Canadian law makers refused [JURIST report] to reconsider the decision, calling the matter settled. In 2004, a Saskatchewan court found [JURIST report] that a federal prohibition on same-sex marriages was unconstitutional, making such marriages legal in the province. In 2005, Canada was only the fourth country to recognize same-sex marriage. There are now more than ten countries that recognize same-sex marriages.




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Prominent Iran human rights lawyer sentenced to 11 years in prison
Ashley Hileman on January 10, 2011 12:28 PM ET

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[JURIST] Prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced Sunday to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. The remaining five years of her sentence result from allegations that she was a member of the Human Rights Defenders Center [advocacy website], an organization originally founded by Shirin Ebadi [JURIST news archive] and four other Iranian lawyers, many of whom have also been detained or otherwise punished for their work. In addition to her prison term, Sotoudeh's punishment also requires that she refrain from leaving the country or practicing law for the next 20 years. Sotoudeh was detained [JURIST report] in September and spent much of that time in solitary confinement. She is most widely known for representing political activists following the controversial 2009 presidential election [JURIST news archive].

Sotoudeh has worked on several high-profile cases. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of mohareb, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Sotoudeh also represented Isa Saharkhiz [Iran Press profile], a well-known press activist who was sentenced [JURIST report] to four years in prison in 2006 for publishing articles against the constitution and offending the state media. Iran continues to be scrutinized internationally for human rights violations. In March, UN High Commissioner for Human Rights Navi Pillay [official profile] criticized the state of human rights in Iran while presenting her annual report. Pillay condemned[JURIST report] Iran for the "arbitrary arrest" of, and "harsh sentences, including capital punishment" given to, individuals involved in protests following the presidential elections.




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Pakistan blasphemy laws will not be changed: PM
Sarah Paulsworth on January 10, 2011 10:32 AM ET

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[JURIST] Pakistani Prime Minister Yousuf Raza Gilani [BBC profile] announced Sunday that he has no intention of revising the country's contentious blasphemy laws [text; JURIST news archive] after Governor Salman Taseer of Punjab province was shot and killed Tuesday [JURIST report] apparently due to his opposition to the law. The laws envisage the death penalty for anyone who insults the Prophet Muhammad and have been widely criticized. Gilani made his statement on the same day as thousands protested in Karachi [TOI report] against amending the laws. Taseer, a senior member of the Pakistan People's Party (PPP) [party website], was shot by one of his security guards while getting into his car at Islamabad's Kohsar Market and died later at a hospital. Interior Minister Rehman Malik said the guard immediately surrendered to police and confessed to shooting Taseer because he had spoken against the blasphemy law. Controversy surrounding Pakistan's blasphemy law has recently been reignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad during an argument with other women in her village last year. Tasseer had spoken in Bibi's defense.

Pakistan's blasphemy laws were introduced in 1986 as a way of protecting Muslim beliefs from insults. In response to 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 said that he has been speaking to various political parties [JURIST report] in Pakistan and that his government is committed to doing away with laws [AFP 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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Supreme Court remands tribal sovereign immunity suit
Dwyer Arce on January 10, 2011 10:06 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday remanded [order, PDF] the case of Madison County v. Oneida Indian Nation [docket; cert. petition, PDF] to the US Court of Appeals for the Second Circuit, ordering the lower court to reconsider its ruling. The Second Circuit ruling [opinion text] had found that tribal sovereign immunity prevented county authorities from foreclosing on property belonging to the Oneida Indian Nation [official website]. Authorities in Madison and Oneida counties in New York had sought the foreclosures due to the failure of the tribe to pay county taxes. The Supreme Court decided to remand the case after the Oneida Indian Nation passed an ordinance in November waiving "its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States." Upon remand, the Supreme Court ordered the Second Circuit to rule in the first instance on whether the ordinance should change the court's earlier decision.

The Supreme Court granted certiorari in the case [JURIST report] in October to determine whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes and whether the ancient Oneida reservation in New York was disestablished or diminished. The case was the most recent in a series of disputes between the Oneida Indian Nation and New York state authorities over the question of state and local taxes. The Supreme Court had previously ruled against [opinion text] the tribe's claims of immunity over tribal lands that were sold in the nineteenth century and repurchased by the tribe within the previous decade.




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Charges filed in shooting death of Arizona federal judge
Sarah Paulsworth on January 10, 2011 9:44 AM ET

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[JURIST] Federal charges [criminal complaint, PDF] were formally filed on Sunday against Jared Loughner, the man is accused of shooting to death [JURIST report] Chief Judge John Roll of the US District Court for the District of Arizona [official website] and five other people Saturday. Fourteen other people were wounded in the shooting including Representative Gabrielle Giffords (D-AZ) [official website]. Loughner faces one count of attempted assassination of a member of Congress, two counts of killing an employee of the federal government and two counts of attempting to kill federal employees. Federal Bureau of Investigation (FBI) Director Robert Mueller [official profile] said that additional charges could be filed [Arizona Republic report] against Loughner in the future. Loughner is expected to appear in court in Monday [Reuters report] to enter a plea in response to the federal charges. Loughner has invoked his right to remain silent [ABC report] and refuses to talk to investigators. It is expected that Loughner will be represented in court [Arizona Republic report] by well-known federal public defender Judy Clarke, who has assisted other high-profile defendants including the "Unabomber" Theodore Kaczynski and Susan Smith, the South Carolina woman who drowned her children in 1994.

President Barack Obama directed that the investigation into the shooting be conducted [press releases] by the FBI, coordinated by Mueller. Authorities arrested Loughner on Saturday and are searching for a possible accomplice [press release]. Due to the currently polarized political climate, many suspect that the attack was politically motivated [ABC report]. Giffords received harsh criticism in Arizona for her vote for the health care reform law [HR 3590; JURIST news archive] and was among those members of Congress who reported threats or vandalism in 2010. Giffords also was an outspoken critic of Arizona's controversial immigration law [SB 1070 text; JURIST news archive]. Ultimately, a clear motive into the shootings has yet to be identified.




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Rights coalition seeks to block additional provisions of Arizona immigration law
Sarah Paulsworth on January 9, 2011 3:54 PM ET

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[JURIST] A coalition of six rights groups filed a petition [ACLU materials] in the US District Court of Arizona [official website] on Friday seeking to block to additional elements of the Arizona's recently passed immigration reform bill SB 1070 [text; JURIST news archives]. The petition [text, PDF], filed [ACLU press release] by the American Civil Liberties Union (ACLU), MALDEF , the National Immigration Law Center (NILC), the Asian Pacific American Legal Center (APALC), National Day Laborer Organizing Network (NDLON) and the National Association for the Advancement of Colored People (NAACP) [official websites], alleges that the legislation infringes on the free speech rights of day laborers. According to the petition [text, PDF]:
The First Amendment guarantees all members of society the right to free expression. Solicitation speech is expression entitled to full protection under the First Amendment. Sections 13-2928 (A) and (B) of the Arizona Revised Statutes are content-based speech restrictions because they impose statewide criminal liability on motorists and individuals based on individuals' employment solicitation speech.
Other key provisions of the legislation were blocked through a preliminary junction order [text, PDF] issued [JURIST report] by the Arizona district court in July. Speaking about petition filed on Friday, legal director and general counsel for the NDLON Chris Newman said, "Free speech protections guaranteed by the First Amendment are vital to our democracy, and they belong as much to day laborers as they do to authors, corporations, and politicians. Other federal judges that have examined similar anti-day labor laws have found them to be unconstitutional, and we are confident these sections of SB 1070 will be enjoined and ultimately struck down as well."

In December, the US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] 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 [JURIST report]. 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.




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Massachusetts high court rules against banks in crucial foreclosure case
Sarah Paulsworth on January 9, 2011 2:45 PM ET

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[JURIST] The Massachusetts Supreme Judicial Court [official website] issued a decision [text, PDF] on Friday ruling against banks in two foreclosure cases that could have important implications on similar cases both inside and outside of the state. In the consolidated decision Justice Ralph Gants [official profile] ruled that neither US Bank National Association nor Wells Fargo, which were not the original mortgagees, failed to prove they were the holders of the mortgages at the time of foreclosure. "As a result, they did not demonstrate that the foreclosure sales were valid to convey title to the subject properties, and their requests for a declaration of clear title were properly denied," he said. In both cases, the mortgages were transferred to two mortgage-backed trusts [Bloomberg report] without the recipients being named. As a result, Gants held:
Because only a present holder of the mortgage is authorized to foreclose on the mortgaged property, and because the mortgagor is entitled to know who is foreclosing and selling the property, the failure to identify the holder of the mortgage in the notice of sale may render the notice defective and the foreclosure sale void.
Wells Fargo released a statement [text] in response to the judgment:
As trustee of a securitized pool of loans, Wells Fargo expects the entities who service these loans to abide by all applicable state laws, including those laws that govern foreclosure sales. Wells Fargo believes the court's ruling does not prevent foreclosures on loans in securitizations. The court simply set forth a standard legal process that mortgage servicers must follow in Massachusetts.
Bank stocks fell significantly [NYT report] after the Massachusetts court issued its ruling, due to concerns that based on this ruling numerous foreclosures carried out over the past several years could be deemed invalid.

Foreclosure practices have come under close scrutiny is recent months. In mid-December Arizona Attorney General Terry Goddard [official profile] filed a lawsuit [press release] against Bank of America (BOA) [corporate website] for misleading customers [JURIST report] in mortgage modification and foreclosure practices. In November Chief Justice Charles Canady [official profile] of the Florida Supreme Court [official website] issued a memorandum [text, PDF] to the chief judges of Florida's 20 judicial circuits directing them to ensure that all foreclosure proceedings in the state are open to the public [JURIST report]. In October, New York Chief Judge Jonathan Lippman [official profile] announced [statement, PDF] a new court rule [JURIST report] that requires lawyers to file a separate affirmation [form, PDF] confirming the accuracy of paperwork used in residential foreclosure cases. Lippman explained that the new rule was an effort to provide better protection [press release] to people facing the possibility of losing their home, particularly in response to the recent discoveries of errors in foreclosure documents nationwide. Also in October, attorneys general from all 50 states and the District of Columbia announced [joint statement, PDF; JURIST report] that they have formed a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG), which will investigate allegations of procedural defects committed by mortgage loan companies during foreclosure processes.




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Obama signs law barring transfer of Guantanamo detainees to US for trial
Ann Riley on January 9, 2011 12:30 PM ET

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[JURIST] President Barack Obama on Friday signed a bill barring the transfer of Guantanamo detainees [press release] to the US for trial. The Ike Skelton National Defense Authorization Act of 2011 [HR 6523] authorizes funding for defense interests abroad, military construction and national security-related energy programs. However, sections 1032 and 1033 [text, PDF] impose significant setbacks to the Obama administration's self-imposed deadline [JURIST report] for closing the military prison at Guantanamo Bay [JURIST news archive]. Specifically, section 1032 bars the use of funds to transfer detainees into the US and section 1033 bars the use of funds to transfer detainees to the custody of foreign countries unless specified conditions are met. President Obama voiced his reluctance in signing the bill:
The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security...We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries...Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security...Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.
The administration plans to seek the repeal of these restrictions and opposes the extension or expansion of them in the future.

The Obama administration continues its push to close the Guantanamo Bay facility, despite running into several hurdles in closing the prison, including opposition from members of Congress and the suspension of detainee transfers to Yemen [JURIST report]. In May, the US House Armed Services Committee [official website] approved [JURIST report] the National Defense Authorization Act for Fiscal Year 2011 [text, PDF] prohibiting the Obama administration from modifying or building a facility in the US to hold detainees currently held at Guantanamo Bay. In November, the US Senate [official website] defeated a measure which would have placed similar restrictions [JURIST report] into the Military Construction and Veterans Affairs Appropriations Act [text, PDF; HR 3082 materials]. In June 2009, the US House denied [JURIST report] an Obama administration request for $60 million to fund the closure of the Guantanamo Bay detention facility, and required the president to submit a detailed plan to Congress documenting the costs and risks of transferring a detainee to the US for trial or detention at least two months before the detainee is to be transferred. 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]. There are currently 178 detainees awaiting transfer from Guantanamo.




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Arizona federal judge killed in shooting, congresswoman in critical condition
Ann Riley on January 9, 2011 10:14 AM ET

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[JURIST] Chief Judge John M. Roll of the US District Court for the District of Arizona [official website] was shot and killed when a gunman opened fire [press release] at a public constituent event held outside of a shopping center in Tucson on Saturday. The gunman additionally killed 5 others, including a 9-year-old girl, and wounded 20. Before serving in the Arizona District Court, Roll was a state judge and an assistant US attorney. Roll was named to the District Court in 1991 by President George H. W. Bush and became chief judge in 2006. In 2009, Roll received a series of death threats [Arizona Republic report] after presiding over Vicente v. Barnett [MALDEF backgrounder], a $32 million civil rights lawsuit filed by illegal immigrants, allowing it to move forward in the courts. In a rare public statement [press release], Supreme Court Chief Justice John G. Roberts Jr. condemned the shooting:
The violence in Arizona today has senselessly taken five lives and inflicted tragic loss on dedicated public servants and their families. We in the judiciary have suffered the terrible loss of one of our own. Chief Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction, as attorney and judge, for more than 35 years. I express my deepest condolences to his wife Maureen and his children, as well as the other victims and their families. Chief Judge Roll's death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it.
The event [press release] was hosted by Congresswoman Gabrielle Giffords (D-AZ) [official website] who was also shot, sustaining severe head injuries, and remains in critical condition. Roll was not appearing with Giffords in his official capacity [Arizona Republic report], but simply stopped by as a courtesy visit.

President Barack Obama directed that the investigation into the shooting be conducted [press releases] by the Federal Bureau of Investigation (FBI), coordinated by Director Robert Mueller. Authorities have arrested suspect Jared Lee Loughner and are searching for a possible accomplice [press release]. Due to the currently polarized political climate, many suspect that the attack was politically motivated [ABC report]. Giffords received harsh criticism in Arizona for her vote for the health care reform law [HR 3590; JURIST report] and was among those members of Congress who reported threats or vandalism in 2010. Giffords also was an outspoken critic of Arizona's controversial immigration law [SB 1070 text; JURIST news archive]. Ultimately, a clear motive into the shootings has yet to be identified.




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Amended citizenship requirement bill introduced in US House
Daniel Makosky on January 8, 2011 4:32 PM ET

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[JURIST] US Rep. Steve King (R-IA) [official website] on Wednesday introduced legislation [HR 104 materials] designed to restrict the automatic grant of citizenship to children born on US soil. The bill, designated the "Birthright Citizenship Act of 2011," seeks to deter illegal immigration [JURIST news archive] by amending the Immigration and Nationality Act (INA) [text] to limit citizenship only to those children with at least one parent that is a citizen, legal resident or an alien member of the US military. King stated [press release] that the bill is necessary to reduce the financial incentives for illegal immigration and curtail the 'birth tourism' industry. The American Civil Liberties Union (ACLU) [advocacy website] described [press release] the measure as an attempt to undermine the 14th Amendment [text] of the US Constitution, which states that, "All persons born or naturalized in the United States...are citizens of the United States." The bill currently bears 26 co-sponsorships, though further action has not yet been scheduled.

Senators Robert Menendez (D-NJ) and Patrick Leahy (D-VT) [official profiles] in October introduced [JURIST report] the Comprehensive Immigration Reform Act of 2010, which incorporates several previously proposed bills. Absent comprehensive reform at the federal level, illegal immigration continues to be a concern for local governments as well. In September, the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF; 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. Earlier that month, a judge for the US District Court for the District of Arizona [official website] granted a motion to dismiss a police officer's suit [JURIST reports] challenging Arizona's controversial immigration law [JURIST news archive]. In August, Arizona Governor Jan Brewer (R) [official website] filed the state's opening brief [text, PDF; JURIST report] in the US Court of Appeals for the Ninth Circuit [official website], asking the court to lift the preliminary injunction preventing the law from taking full effect. Also in August, a federal judge ruled [JURIST report] that the Nebraska Supreme Court should be the first forum to address a Fremont, Nebraska ordinance that bans the hiring, harboring or renting of property to illegal immigrants.




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Former lobbyist sentenced for campaign finance abuses
Daniel Makosky on January 8, 2011 2:27 PM ET

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[JURIST] A federal judge in the US District Court for the Eastern District of Virginia [official website] on Friday sentenced Paul Magliocchetti, founder of the now-defunct political lobbying firm PMA Group, to 27 months imprisonment [press release] for his involvement in campaign finance [JURIST news archive] improprieties spanning over five years. Magliocchetti was indicted [press release] in August and the following month pleaded guilty to charges of making illegal conduit and corporate contributions and making false statements. Between 2003 and 2008, Magliocchetti circumvented campaign finance regulations governing individual and corporate contributions by instructing friends, family and associates to make personal donations to specified candidates and reimbursing their expenses. The US Department of Justice (DOJ) [official website] contends that Magliocchetti funneled over $1 million to campaigns and political action committees in this manner, though Magliocchetti's confession admits to only $386,000 [Washington Post report]. In addition to confinement, US District Judge T.S. Ellis III also sentenced Magliocchetti to two years supervised release and ordered him to pay a fine of $75,000.

DOJ officials described Magliocchetti's collective activities as one of the largest campaign finance crimes in history, though stressed that the recipients were unaware of the funds' improper nature. Because of cases like Magliocchetti, pressure on politicians to be aware of where their campaign contributions come from has increased in recent years. In September 2009, the US Court of Appeals for the District of Columbia Circuit [official website] upheld [JURIST report] the constitutionality of the Honest Leadership and Open Government Act of 2007 (HLOGA) [text, PDF], a law passed [JURIST report] in 2007 that requires members of Congress to disclose more information about their fund-raising efforts and gifts they receive from lobbyists. The Obama administration has also tried to reduce the amount of contact between lobbyists and officials in the administration. In April 2009, leaders of several lobbying groups asked [JURIST report] the administration to eliminate or change restrictions it has put on contact that lobbyists can have with administration officials concerning American Recovery and Reinvestment Act of 2009 [text, PDF; official website] projects. Earlier that month, JURIST guest columnist William Luneburg [faculty profile] criticized constitutional arguments [JURIST op-ed] made by the lobbyist groups, arguing that the restrictions were needed to limit the disproportionate power of such groups.




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Federal judge orders Stanford trial delayed
Daniel Makosky on January 7, 2011 3:26 PM ET

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[JURIST] A federal judge on Friday indefinitely postponed the trial of Allen Stanford [BBC profile; JURIST news archive], citing chemical dependency that has left Stanford incompetent to stand trial at present. Judge David Hittner of the US District Court for the Southern District of Texas [official website] heard testimony from three psychiatrists before concluding that Stanford's addiction to anti-anxiety and anti-depression medications prescribed by prison physicians has rendered him unable to meaningfully contribute to his defense [Houston Chronicle report]. Judge Hittner ordered representatives for each side to submit motions by Wednesday to determine whether Stanford should remain in custody or be released to a private facility for detoxification.

Stanford is accused of defrauding investors [indictment, PDF; JURIST report] out of $7 billion. Last January, a federal judge ordered that $21.2 million in gold coins and bullion be returned [JURIST report] to more than 200 of Stanford's investors. Weeks earlier, the US Department of Justice [official website] began investigating [JURIST report] political donations and other connections between Stanford and US lawmakers. Stanford donated more than $2.3 million to lawmakers' campaigns and spent more than $5 million in lobbying efforts while allegedly carrying out the fraud. Stanford has denied the charges [JURIST report] against him and was originally set to be released on $500,000 bail until prosecutors successfully appealed the decision. Through three of his investment companies, Stanford allegedly violated the Securities Act of 1933, the Securities Exchange Act of 1934 and the Investment Company Act of 1940 [texts]. He was originally charged [complaint, PDF; JURIST report] in February with running a fraudulent investment scheme by selling certificates of deposit on the promise of improbably high interest rates.




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Illinois House votes to abolish death penalty, still must pass lame-duck senate
Zach Zagger on January 7, 2011 12:25 PM ET

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[JURIST] The Illinois House [official website] passed a bill abolishing the death penalty [JURIST news archive] Thursday, but the bill must still be passed by the Senate with the General Assembly facing a lame-duck session. The amended bill (SB3539) [amendment, text] passed the House 60-54 [Chicago Tribune report] just hours after it had failed by a single vote. It marks the first time the state legislature has voted to abolish the death penalty since former Governor George Ryan put a moratorium on it 10 years ago. Supporters of the bill expressed concern over the possibility of innocent people being executed especially after some people on death row have later been exonerated. Opponents argue, alternatively, that that the threat of the death penalty is an important tool for law enforcement officials.

The death penalty remains a controversial issue worldwide. According to an Amnesty International (AI) [advocacy website] report [text, PDF] the number of countries using the death penalty dropped [JURIST report] in 2009 but more than 700 people were executed in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia, and the US. Last August, US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia, police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [official website] Executive Director Sarah Totonchi argues [JURIST commentary] that the "'Troy Davis' case illustrates that U.S. courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished."




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US transfers Guantanamo detainee to Algeria a year after habeas order
Zach Zagger on January 7, 2011 11:44 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] announced [press release] Thursday that Guantanamo Bay [JURIST news archive] detainee Farhi Saeed Bin Mohammed was transfered to his native Algeria pursuant to a court order [judgment, PDF] from November 2009. The DOD said it had successfully transferred Farhi after the inter-agency Guantanamo Review Task Force [executive summary, PDF] approved the transfer following a comprehensive review considering, especially, the security issues. The DOD worked closely with the government of Algeria to transfer Farhi safely and securely. Farhi's lawyers had fought the transfer [WP report] back to Algeria out of fear that he would be tortured and mistreated. It is unclear whether Farhi is currently in jail in Algeria.

Last January, the US Supreme Court declined to review the decision [JURIST reports] of the lower court permitting the government to transfer Farhi to Algeria. The decision left in place a ruling of the US Court of Appeals for the District of Columbia [official website], in which the government asserted that Fahri's return to Algeria was permissible because there was not credible evidence that he would face torture upon his arrival. In that ruling, Judge Gladys Kessler had directed the government to "take all necessary and appropriate steps to facilitate [Fahri's] release forthwith." The order resulted from a civil action brought against the US government for unlawfully detaining him since 2002.




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South Korea police find Google violated privacy laws
John Paul Putney on January 6, 2011 1:40 PM ET

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[JURIST] The South Korea National Police Agency [official website, in Korean] announced Thursday that it has found evidence that Google [corporate website; JURIST news archive] illegally collected private data in the process of producing its popular Street View [website] mapping service. The illegally captured data included hundreds of thousands of emails, instant messages, passwords and search histories [Korea Times report] through unencrypted Wi-Fi networks. The information was discovered on 79 hard disks [JoongAng Daily report] seized from Google's Seoul office, which police raided [JURIST report] in August. According to police, the data was captured in Seoul and three other major cities [UKPA report] between October 2009 and May 2010 when Google announced that it had inadvertently collected fragments of data from unsecured Wi-Fi networks in more than 30 countries. Google has apologized for the intrusion, indicating the data was mistakenly collected and promised to continue cooperating with the investigation [AP report]. Police acknowledged that 10 Google employees in South Korea and the US are being investigated, although each claimed they had no knowledge of what was collected [AFP report]. The police indicated the investigation would be concluded by the end of January [Guardian report], but it remains unclear whether Google will be prosecuted.

South Korea is the latest country to find Google in breach of its privacy, but is the first to publicly announce the discovery of evidence. In November, the UK Information Commissioner's Office (ICO) [official website] announced that Google committed a "significant breach" [press release] of the Data Protection Act [text] through its data collection practices [JURIST report] for its Street View maps. In October, Canadain Privacy Commissioner Jennifer Stoddart [official website] announced that Google was in violation of the Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA) when it unintentionally captured personal information [JURIST report] while taking pictures for its Google Street View feature. Also in October, The US Federal Trade Commission (FTC) [official website] announced that it ended an inquiry [JURIST report] into internal policies and procedures at Google that led to the company inadvertently collecting data on unsecured wireless networks while photographing streetscapes for its Street View maps program. Other countries, including Australia and Spain [JURIST reports] have also launched their own investigations into the privacy breach.




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Bangladesh court opens trial of 800 soldiers charged in 2009 mutiny
Ashley Hileman on January 6, 2011 11:16 AM ET

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[JURIST] The civilian trial of 800 soldiers charged with crimes stemming from their roles in a February 2009 mutiny [BBC backgrounder; JURIST news archive] began Wednesday in the Bangladeshi capital city of Dhaka. The soldiers were charged [AFP report] in July with crimes including murder, conspiracy and looting military weapons, among others. This is the latest in a series of military and civil trials for the thousands of citizens and soldiers involved in the mutiny, which left 74 dead, but these charges are the most serious to date with those found guilty of murder facing the death penalty. The trial [BBC report], which is expected to last over a year and to include the testimonies of more than1,000 individuals, was adjourned until February 3, when the charges against the defendants will be read in full.

In August, a special Bangladeshi military court sentenced [JURIST report] 14 members of the Bangladesh Rifles (BDR) [official website] border guard for their roles in the mutiny. The tribunal, led by BDR head Maj. Gen. Mainul Islam, fined each of the men Tk 100 and sentenced [BDNews24 report] them to prison terms ranging from four months to six years, one year short of the maximum possible sentence for rebellion under Bangladeshi law. About 3,500 other soldiers will face lesser charges in military courts, which have already convicted more than 200 [JURIST report]. Six special courts were established [BD News report] shortly after the Bangladeshi Supreme Court [official website] recommended against [JURIST report] military court-martial trials for BDR members who took part in the mutiny. Dozens of BDR officers, including the force's commander, were killed and their bodies left in sewers and shallow graves during the mutiny, which was sparked by grievances over pay and working conditions.




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Federal appeals court finds California memorial cross unconstitutional
Julia Zebley on January 5, 2011 3:01 PM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] unanimously Tuesday that California's Mount Soledad cross, a 43-foot cross erected as a Korean War veterans' memorial, is unconstitutional under the First Amendment [text]. Justice M. Margaret McKeown declared, "[t]he use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion's symbolism as its own, as universal." Although the cross was found unconstitutional, there was no order for removal, and the court suggested the monument could be altered to achieve constitutionality, without giving any specific recommendations. The American Civil Liberties Union of San Diego (ACLU) [advocacy website], one of the parties to the case, stated [press release] that they were, "pleased that the court recognized the fundamental principle barring the government from playing favorites with religion." The Mount Soledad Memorial Association [official website] plans to appeal [KPBS News] to the US Supreme Court [official website], citing Justice Anthony Kennedy's stay on removing the cross [JURIST report] in July 2006 as hope that that the court will rule in their favor.

In April, the US Supreme Court ruled [JURIST report] in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. This is similar to a long-standing proposed solution for the Mount Soledad cross, as the ACLU has suggested moving the cross to a private religious site [ACLU backgrounder, PDF]. In August 2006, then-president George W. Bush signed [JURIST report] a bill [HR 5863 summary; PDF text] into law that transferred ownership of the Mount Soledad cross to the federal government. The cross, which was erected as a Korean War veterans memorial, has been the center of a religious dispute for 21 years, which began when Philip Paulson, a Vietnam veteran and atheist, challenged the cross as a government endorsement of religion prohibited under the First Amendment and filed the original suit in 1989. Paulson died in 2006. Recently, highway memorial crosses and crosses on license plates [JURIST reports] have also been found unconstitutional by federal courts.




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Federal judge blocks government's Microsoft e-mail contract in Google challenge
Jaclyn Belczyk on January 5, 2011 2:27 PM ET

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[JURIST] A judge for the US Court of Federal Claims [official website] has issued a preliminary injunction preventing the US Department of Interior (DOI) [official website] from accepting a bid from Microsoft [corporate website] to overhaul its e-mail system, according to a ruling made public Tuesday. Google [corporate website; JURIST news archive] had filed a lawsuit [JURIST report] in November alleging that the DOI arbitrarily decided only to allow Microsoft to compete for the contract. Google was allegedly excluded because of security concerns, but the company says it has created a special application, Google Government Apps, that addresses all of these concerns. Furthermore, the company argues its application would save US taxpayers millions of dollars. The DOI may now continue to dispute Google's claim or elect to consider Google's bid.

Over the past year, Google's privacy practices and policies have been the focus of numerous investigations and complaints. In October, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into Google's internal policies and procedures that led to the company inadvertently collecting data on unsecured wireless networks while photographing streetscapes for its Street View maps program. Also in October, Canadian Privacy Commissioner Jennifer Stoddart announced that Google was in violation [JURIST report] of the country's Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA). In August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] in connection with accusations that the company had been illegally acquiring user data. In July, the Australian Privacy Commissioner announced [JURIST report] that its investigation revealed Google's actions violated the Australia Privacy Act [government backgrounder].




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Ninth Circuit seeks guidance on same-sex marriage appeal from California high court
Jaclyn Belczyk on January 5, 2011 11:33 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday asked [order, PDF] the Supreme Court of California [official website] to weigh in on whether supporters of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, have standing to defend the measure when state officials have refused to do so. Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8 [JURIST report] in August. Then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website] were originally defendants in the lawsuit, but they refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. The Ninth Circuit asked the Supreme Court to answer the following question:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
If the court answers in the negative, the Ninth Circuit would likely dismiss the case, and it is unclear whether Walker's ruling would stand. The parties disagree as to what effect a dismissal would have, and the circuit court noted the issue but did not address it. Also Tuesday, the Ninth Circuit upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt [FJC profile] issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report].

The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] last month. 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. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] on Walker's ruling, pending appeal.




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Milwaukee Catholic diocese to file for bankruptcy citing clergy abuse lawsuits
LaToya Sawyer on January 5, 2011 10:40 AM ET

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[JURIST] Archbishop Jerome Listecki announced Tuesday that the Archodiocese of Milwaukee [official website] will file for Chapter 11 bankruptcy protection [press release] as a result of financial strain from lawsuits over the clergy sex abuse scandals [JURIST news archive]. The archdiocese's purpose in filing the petition is to achieve the dual goals of compensating remaining victims and survivors of the abuses and continuing to carry out essential ministerial functions of the archdiocese. Listecki expressed his belief that Chapter 11 reorganization was the best approach to address these goals:
It enables the archdiocese to use available funds to compensate all victims/survivors with unresolved claims in a single process overseen by a court, ensuring that all are treated equitably. In addition, by serving as a final call for legal claims against the archdiocese, the proceeding will allow the archdiocese to provide closure and resolution so we can move forward on stable financial ground, focused on our Gospel mission.
The Chapter 11 process provides federal court supervision of the development of a plan that requires that the remaining archdiocesan resources are allocated fairly. Additionally, the plan must be feasible and not likely to require any further modifications to keep the archdiocese financially viable. The archdiocese expects the reorganization process to be complete within 12 to 18 months.

Further heightening the financial frustrations of Milkwaukee's diocese is the recent Wisconsin Court of Appeals decision, which held [opinion text] that insurance companies do not have to contribute to the clergy abuse settlements. Milkwaukee is now the eighth American diocese to file for bankruptcy [NYT report] in response to the clergy sex scandals. Other state dioceses, such as Vermont [JURIST report], have resorted to selling church property and securing loans as means to meet the financial demands of the abuse settlements. Since 2007, in the US alone, the Catholic Church has settled more than 500 cases [JURIST news archive] of abuse for over $900 million.




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Spain judge launches probe into Iraq refugee killings
Julia Zebley on January 5, 2011 9:00 AM ET

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[JURIST] Spanish National Court judge Fernando Andreu [JURIST news archive] on Tuesday issued a writ to pursue an investigation against Iraqi Lieutenant General Abdol Hossein Al Shemmari for allegedly ordering a July 2009 strike against Iranian exiles at Camp Ashraf in which 11 unarmed civilians were killed, 36 were detained and approximately 500 were injured. Most of the citizens of the camp are members of the People's Mojahedin Organisation of Iran (MEK) [advocacy website], the largest Iranian opposition organization, whose members are considered protected persons under the Geneva Conventions. Although Spain has no discernible involvement in the situation, Andreu cited section 146 of the Geneva Conventions [text] as the basis for his investigation. The probe will continue through the obligation of Geneva signatories to prosecute violations to the Geneva Conventions, despite Spain's October 2009 passage of a law limiting its use [JURIST report] of universal jurisdiction [AI backgrounder; JURIST news archive] to cases involving Spanish citizens. The Iraqi Ministry of Foreign Affairs [official website] claims to have launched an investigation into the situation and criticized the Spanish courts for interfering with its authority [El Pais report, in Spanish], but Andreu found this investigation "insufficient." Al Shemmari's summons is for March 8 in Madrid, but, as active duty military personnel, he may be unable to appear. If he does not appear, proceedings with continue without him.

Before the law was changed in October 2009, Spain allowed the exercise of universal jurisdiction over foreign torture, terrorism and war crimes if the case was not subject to the legal system of the country involved, regardless of its connection to Spain. In June 2009, human rights groups urged [JURIST report] the Spanish government to continue the broad exercise of universal jurisdiction, while some countries, including Israel [Haaretz report], argued [JURIST report] for changes to the practice. Universal jurisdiction has been used by prominent Spanish judge Baltazar Garzon [JURIST news archive] to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives]. Investigations have also proceeded against Israeli actions in Gaza in 2002, detainee abuse at Guantanamo Bay and allegations of war crimes and genocide in Rwanda, Tibet, Guatemala and China [JURIST reports].




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Hungary defends controversial media law in face of EU criticism
Jaclyn Belczyk on January 4, 2011 2:20 PM ET

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[JURIST] The Hungarian government on Tuesday continued to defend its controversial new media law in the face of criticism from the EU. The new law, which entered into force this week, creates the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the new law, the government can fine broadcasters more than 700,000 euros and newspapers and news websites roughly 90,000 euros if their coverage is deemed unbalanced or immoral by the media authority, whose members are all loyal to the ruling Fidesz party [party website, in Hungarian]. The new law has been harshly criticized [Daily Mail report] by members of the media, as well as other European governments, as too restrictive of free expression, and the European Commission has requested more information on the law to determine whether it complies with EU law. The Hungarian government, which assumed the EU presidency on January 1, has nevertheless continued to defend the law, with Zoltan Kovacs, state secretary for communication, telling national radio Tuesday that it is unnecessary to change the law [ANP/AFP report].

The Hungarian Parliament [official website, in Hungarian] approved the law [Reuters report] in December, amid protests and criticism. In 2008, the Constitutional Court of Hungary [official website] struck down [JURIST report] two proposals passed by the country's parliament to criminalize hate speech as unconstitutional infringements on the freedom of expression. The court held that the extremist speech that the amendments sought to prevent was not a danger to society because it was already marginalized. The first bill would have allowed recovery in cases where a person's ethnic group, rather than the individual person, was insulted. The second bill would have designated national, ethnic, racial or religious insults as misdemeanors punishable by up to two years in prison.




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