February 2011 Archives


Supreme Court hears arguments on definition of 'cocaine base', patent rights
Ann Riley on February 28, 2011 3:10 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in DePierre v. United States [oral arguments transcript, PDF; JURIST report] on whether the term "cocaine base" in the Federal Sentencing Guidelines [materials] is limited to "crack" cocaine or encompasses all forms of cocaine chemically classified as a base. The US Court of Appeals for the First Circuit ruled [opinion, PDF] that "cocaine base" refers to "all forms of cocaine base, including, but not limited to crack cocaine." Counsel for the petitioner argued that Congress did not intend "cocaine base" to refer to the substances present in the middle of the crack-production process, saying:
First of all, because Congress didn't use the term "cocaine," which is used elsewhere in the provision, it clearly meant a subset. It didn't mean all of the substances with the chemical formula that satisfies the chemical term "cocaine." Second of all, the statute shows just by the 100-to-1 ratio that Congress was focused on something that was especially dangerous, much more dangerous than powder. Third, the legislative context was, as the Court said in Kimbrough, that this was a statute that was enacted in response to a particular problem, and I think the question we're debating is: Would Congress have said, when it defined the term "cocaine base" ... that was used at the time to describe these categories of substances.
Counsel for the government argued that whatever the term—freebase, coca paste or crack—"cocaine base" is the same chemically and smokeable. Further, that Congress did not limit the statute to just crack, one form of cocaine base, but all cocaine bases. The government also argued at "cocaine base" is a redundancy made by Congress to clarify the previously imprecise term "cocaine," used by the courts.

In Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems [oral arguments transcript; JURIST report], the court heard arguments on whether the rights of universities under the Bayh-Dole Act [35 USC §§ 200-212] to inventions arising from federally funded research can be terminated by the individual inventors through separate agreements assigning the inventor's rights to a third party. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that Roche possesses an ownership interest in the patents at issue, depriving Stanford's standing to sue. Counsel for the petitioner argued:

The inventor, because he is working here at the time of the assignment on a Federally funded project as an employee of Stanford University, is essentially working on something covered by Bayh-Dole; and being covered by Bayh-Dole means that he lacks the power to transfer title to his future invention to someone else because the statute has already spoken for it. ... [The general rule is] that inventors receive title. However ... the array of so-called vesting statutes that predicated the Bayh-Dole Act throughout the 30 years in between are statutes that specifically, in most instances without any discussion of an assignment, simply vested title directly in the United States. ... Congress clearly had the power to do that, and they did it, and no one ever seriously argued that they couldn't.
Counsel for the respondent accepted assertion that while the Bayh-Dole Act purported to put patents into the market, it did not change the long-standing rule "that title to an invention vests in the inventor, subject to assignment, not in the inventor's employer." However, counsel for Stanford further argued that the Bayh-Dole act should be read straight-forwardly, and not in relation to the general rule. The respondent went on to say, "Congress worked a highly transformative change in the law of patent ownership and assignment and did it in a very obscure and indirect way ... [creating] this brand-new vesting rule."




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Italy court resumes PM Berlusconi's tax fraud trial
LaToya Sawyer on February 28, 2011 2:48 PM ET

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[JURIST] An Italian court on Monday resumed the trial of Prime Minster Silvio Berlusconi [BBC profile; JURIST news archive] on tax fraud charges [JURIST report], just weeks after the Constitutional Court [official website, in Italian] modified [JURIST report] a law [materials, in Italian] that would have granted Berlusconi and other public officials temporary immunity from charges while in office. The court first suspended [JURIST report] Berlusconi's trial last year to consider the legitimacy of the original law that would have postponed criminal proceedings against him for 18 months. The law now gives the courts the power to assess the severity of the charges to determine if each separate charge is a legitimate impediment to performing official duties. Berlusconi was absent [ANSA, in Italian] for Monday's hearing. His lawyers, however, did not invoke a claim for legitimate impediment based on his absence, according to reports. Berlusconi's next hearing for the tax fraud trial is set for April 11.

While awaiting his tax fraud trial, Berlusconi first faces trial for underage prostitution [JURIST report] on April 6. Earlier this month, an Italian judge ordered Berlusconi to stand trial on charges of paying for sex with a minor and abuse of power. Berlusconi allegedly paid 7,000 euros to then 17-year-old dancer, Karima El Mahroug, for sex and later called police to secure her release [BBC report] while she was detained on an unrelated suspicion of theft. The scandal has made Berlusconi the subject of protests [Reuters] by hundreds of thousands of women, calling for his resignation over his recent sex scandal. Berlusconi, however, has refused to step down. Last week, Berlusconi solidified his intentions to remain in office by pledging judicial reform [JURIST report] and several other improvement he plans to make in Italy.




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Supreme Court rules dying victim's statement admissible at trial
Erin Bock on February 28, 2011 1:38 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 6-2 in Michigan v. Bryant [Cornell LII backgrounder; JURIST report] that preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are non-testimonial evidence, rendering them admissible in court. The case involved statements made to police by Anthony Covington identifying Richard Bryant as his assailant and stating the location of the shooting as he lay dying in a gas station parking lot. The trial court admitted Covington's statements into evidence, and Bryant was subsequently convicted of second-degree murder. The Michigan Supreme Court reversed [opinion, PDF], ruling that the testimony was inadmissible hearsay in violation of the Confrontation Clause of the Sixth Amendment [text], which gives criminal defendants the right to confront witnesses in a court of law. In an opinion delivered by Justice Sonia Sotomayor, the US Supreme Court determined that Covington's statements were admissible and not barred by the Confrontation Clause because they were not testimonial statements, but were statements given "to enable police assistance to meet an ongoing emergency" and were not investigatory in nature. Citing recent cases including Davis v. Washington [opinion, PDF], Sotomayor wrote that "not all those questioned by the police are witnesses and not all 'interrogations by law enforcement officers' ... are subject to the Confrontation Clause." The court took an objective approach in determining what statements would be admissible.
An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the "primary purpose of the interrogation." The circumstances in which an encounter occurs—e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.
Justice Antonin Scalia wrote a dissent decrying the court's "distorted view," advocating a stricter interpretation of the Confrontation Clause and stating that the opinion leaves relevant jurisprudence "in a shambles." Scalia advocated looking more closely at the victim's purpose in making the statements stating that his "pressing medical needs ... reinforce the testimonial character of his statements." Justice Ruth Bader Ginsburg also filed a dissent.

In 2009, the court ruled on another Confrontation Clause issue in Melendez-Diaz v. Massachusetts [JURIST report], where it held that a forensic analyst's laboratory report is testimonial evidence under the Confrontation Clause, giving criminal defendants a right to cross-examine the analysts. One week after the Melendez-Diaz ruling, the court granted certiorari in Briscoe v. Virginia [JURIST report], to consider whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause by providing that the accused has a right to call the analyst as his own witness. The court issued a decision [opinion, PDF; JURIST report] in January 2010 stating that the admission of the report without testimony was unconstitutional.




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Iraq court sentences UK contractor to 20 years for shootings
Ashley Hileman on February 28, 2011 12:58 PM ET

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[JURIST] An Iraqi court on Monday sentenced former British solider Danny Fitzsimons to 20 years in prison for the shooting deaths of two of his colleagues in August 2009. Fitzsimons, who was working as a contractor for the UK security firm, ArmorGroup, now a part of G4S [corporate website], escaped the death penalty [Guardian report] but received the jail sentence for the murders of fellow contractors, Paul McGuigan and Darren Hoare, following an argument between the three men. In addition to the murders, Fitzsimons was also accused of wounding an Iraqi security guard while attempting to leave the scene of the crime. At trial, Fitzsimons admitted that he shot the two men but argued that he did so in self-defense. He also claimed to suffer from post-traumatic stress disorder (PSTD), stemming from his previous military experiences abroad, which the court considered in handing down a lighter sentence. In a press conference, Clive Stafford Smith, Director of Reprieve [advocacy website], a legal action charity working to enforce the human rights of prisoners, stated [text]:
If G4S had done the proper checks and risk assessments when Danny applied to work with them, they would have quickly seen that he was suffering from serious PTSD, a consequence of loyally serving his country. Instead they conducted minimal checks and sent him off to Iraq. Now Danny could spend the rest of his life in a hostile prison hundreds of miles from home, when he should be receiving psychiatric treatment.
Fitzsimons' lawyer plans to appeal and hopes to lessen the sentence by another five years. In the meantime, he will likely be transferred from Baghdad's Green Zone, where the shootings took place, to the Rusafa prison, which is located in another part of the city. Fitzsimons is the first Westerner to be convicted in Iraq since it was invaded in 2003.

Behavior of military contractors has been an ongoing issue abroad. In September, a report presented by the UN Working Group on the Use of Mercenaries [official website] urged the US [JURIST report] to increase regulation of military contractors [text, PDF] employed worldwide, citing alleged human rights abuses and the contractors' lack of transparency and accountability. The UN Working Group met with US officials last summer to discuss the actions of US private military and security companies (PMSCs) and to make recommendations on its findings. The report proposed that the US amend the Military Extraterritorial Jurisdiction Act [text] to extend the country's criminal jurisdiction to PMSCs abroad, eliminate judicial immunity for PMSCs, pursue investigations into possible human rights abuses and enact the Stop Outsourcing Security (SOS) Act [materials] currently before Congress, which would gradually discontinue the use of PMSCs. According to the report, the predominately American PMSC industry generates up to $100 billion per year, constitutes about half of the US military forces sent to Iraq and Afghanistan and needs continued reform.




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UN rights chief urges international protection for Middle East protesters
Zach Zagger on February 28, 2011 11:09 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Monday condemned the response by Middle Eastern governments to peaceful protests, urging the international community to take a strong stance against violence in Libya. In Pillay's opening statement to the Sixteenth Session of the Human Rights Council (UNHRC) [official website] she urged the body and the international community [video] to remain vigilant against Libya because the danger of violence against protesters still exists. The UNHRC took the unprecedented step [JURIST report] of sanctioning Libya last week by unanimously recommending its suspension. Pillay said:
Let me reiterate, that the illegal and excessively heavy-handed response of a number governments is unacceptable. Repression of peaceful expression of dissent is also intolerable. I remind all those concerned that widespread and systematic attacks against the civilian population may amount to crimes under international law. Attacks must be independently investigated and those responsible for them must be held to account.
She praised the sanctions against Libya passed last week as a providing the international community with a "solid platform for action." She further stated that "the rights of the protesters must be upheld. The asylum seekers, migrants, and other foreign nationals fleeing the violence must be protected." She urged that international community to allow the popular uprisings to take root and to protect human rights rather than simply favoring stability in the region.

Last week, Pillay called on the Libyan government to stop the violence directed at protesters [JURIST report] within that nation. Pillay's statement, directed at Libyan leader Muammar Gaddafi [BBC profile], reminded the UNHRC of the repeated calls by numerous nations for Gaddafi to renounce the use of violence. The situation in Libya escalated last week over days of continued protests and violent suppression by security forces. Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] said that the ICC cannot investigate possible crimes in Libya [JURIST report] because the country is not a party to the Rome Statute [materials]. The statement came after Pillay said earlier that the Libyan government's response to recent protests may amount to crimes against humanity [JURIST report]. The protests began after protests throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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India Supreme Court finds constitutional right to counsel
Dwyer Arce on February 28, 2011 10:59 AM ET

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[JURIST] The Supreme Court of India [official website] has ruled that criminal defendants have a right to counsel [judgment, PDF] under the Indian Constitution [text, PDF]. The court found Thursday that under Article 22(1) of the Constitution, a court could not decide a criminal case without a lawyer present for the defendant, and should appoint counsel where the defendant cannot obtain a lawyer. Citing the US Supreme Court [JURIST news archive] cases of Powell v. Alabama, Gideon v. Wainwright and Brewer v. William [opinion texts] to support its decision, the Supreme Court of India went on to note that even the defendants at the Nuremberg trials [LOC backgrounder] had a right to counsel, as did defendants in England and ancient Rome. From this the court concluded that it was "not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed." The court continued:
The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula "Na vakeel, na daleel, na appeal" (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
Following the ruling, the Supreme Court remanded the case to the Gauhati High Court for rehearing in light of the decision.

The right to counsel has been the subject of numerous court cases worldwide in recent years. In October, the UK Supreme Court ruled that Scottish police could no longer question a suspect in custody [JURIST report] without the presence of a lawyer. The court found that the previous law, which permitted interrogation of suspects without a lawyer for up to six hours, violated the Article 6 right to a fair trial of the European Convention on Human Rights [text, PDF]. The week prior, the French Court of Cassation had ruled that all persons in custody of French law enforcement, including terrorism suspects, are entitled to consult with lawyers [JURIST report] from the outset of criminal proceedings. Also in October, the Supreme Court of Canada ruled that Canadians do not have the right to have counsel [JURIST report] present during custodial interrogations under the Charter of Rights and Freedoms [text]. In May 2009, the US Supreme Court ruled that the Sixth Amendment did not require police to cease interrogations [JURIST report] after a suspect had invoked his right to counsel, ruling that the Fifth Amendment provides adequate protection.




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ICC: no immunity for perpetrators of crimes against humanity in Libya
Sarah Paulsworth on February 28, 2011 9:09 AM ET

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[JURIST] The International Criminal Court (ICC) [official website] will not grant immunity [press release] to any person perpetrating crimes against humanity in Libya, according to a statement issued by the court on Monday. The ICC Prosecutor's Office is currently assessing allegations of widespread or systematic attacks against the civilian population as well as other additional legal requisites established by the Rome Statute [text]. "Information suggests that forces loyal to President Muammar Gaddafi are attacking civilians in Libya," said ICC Chief Prosecutor Luis Moreno-Ocampo [official profile]. "This could constitute crimes against humanity and must stop." The UN Security Council [official website] on Saturday voted unanimously [press release] to impose sanctions [JURIST report] on Libyan leader Colonel Muammar Gaddafi [BBC profile], marking the first unanimous referral to the ICC in UN history. Although Libya is not a signatory to the Rome Statute, which created the ICC, the Security Council voted that it should nonetheless be subject to its investigation.

The UN Human Rights Council (UNHRC) [official website] on Friday adopted a resolution [text, DOC] condemning the recent violence in Libya and ordering an international inquiry [JURIST report] into alleged abuses. During a special session, the 47-member council unanimously adopted the resolution, which also calls upon the Libyan government to protect its population and respect the will of its people. UN High Commissioner for Human Rights Navi Pillay [official profile] spoke to the UNHRC [JURIST report] earlier Friday, calling for the Libyan government to stop the violence directed at protesters [transcript] and for the Council to rise to action. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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Tobacco companies file lawsuit against FDA advisory panel
Carrie Schimizzi on February 27, 2011 2:55 PM ET

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[JURIST] Two tobacco companies filed a lawsuit [press release] in the US District Court for the District of Columbia [official website] on Friday against the Food and Drug Administration (FDA) [official website] in order to enjoin a recent opinion by the agency's advisory committee due to conflicts of interest. The suit, filed by Lorillard, Inc. and R.J. Reynolds Tobacco Company [corporate websites] seeks to prevent the FDA from relying on a forthcoming recommendation on the use of menthol in cigarettes [Reuters report]. The suit alleges that three members of the Tobacco Products Scientific Advisory Committee [official website], Doctors Neil Benowitz, Jack Henningfield and Jonathan Samet, have made thousands of dollars as expert witnesses in litigation against tobacco product manufacturers and have "continuing financial relationships" with pharmaceutical companies that make smoking-cessation products. The FDA is not required to comply with the advisory committee's recommendation, but the tobacco companies fear any ban on menthol cigarettes. The recommendation is expected to be released by March 23, 2011.

Just last year, the FDA announced [press release] a final rule [text] restricting tobacco sales and promotions [JURIST report] directed at youth. The Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents are a set of broad regulations "designed to significantly curb access to and the appeal of cigarettes and smokeless tobacco products to children and adolescents in the United States." In 2009, US President Barack Obama [official website] signed into law [JURIST report] the Family Smoking and Tobacco Prevention Act [HR 1256 text], which grants the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative, and allows for the regulation of cigarette ingredients. Under the bill, the FDA has the authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses, or tobacco grower cooperatives. The FDA first began to regulate the tobacco industry in 1996, but, in 2000 the US Supreme Court ruled in FDA v. Brown & Williamson Tobacco Corp. [opinion text] that Congress had not provided the FDA with the authority to regulate tobacco products.




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Court rules $10.1 billion class action against Philip Morris may be reopened
Carrie Schimizzi on February 27, 2011 1:59 PM ET

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[JURIST] A three-judge panel for the Illinois Court of Appeals for the Fifth District [official website] on Thursday unanimously decided to reopen a $10.1 billion class action against Philip Morris [corporate website] involving deceptive marketing practices in light of a favorable 2008 US Supreme Court ruling on the subject matter. The class represented in the lawsuit [Duke Law backgrounder] claims that Philip Morris violated state law when it misled consumers into thinking that "light" cigarettes were safer and contained less tar. The plaintiffs allege that the light cigarettes actually contain a more toxic form of tar than the original brand. The trial court originally found on behalf of the plaintiffs, but the Illinois Supreme Court [official website] overturned the verdict in 2005 stating that Philip Morris could not be held liable under state law due to the fact that the Federal Trade Commission (FTC) [official website] allowed the use of "light" on cigarette packaging. The US Supreme Court [official website] in 2006 affirmed [opinion, PDF] the Supreme Court's ruling and the case was dismissed. However, in 2008 the US Supreme Court, in a case concerning the marketing of "light" cigarettes, ruled [opinion, PDF] that state consumer protection laws can be used to hold cigarette companies liable. A lawyer for Philip Morris calls the claims "meritless" and says that the court's ruling was based on a statute of limitations [AP report] and not the merits of the case.

Philip Morris and other cigarette companies are currently involved in numerous lawsuits. Last year, Philip Morris and RJ Reynolds [corporate website], along with an industry trade group, filed an appeal [cert. petition, PDF; JURIST report] with the US Supreme Court to overturn a $271.5 million class action settlement. The settlement was awarded [judgment, text] by the Louisiana Court of Appeals for the Fourth Circuit [official website] in order to establish a fund meant to help Louisianans quit smoking. In 2008, the US Court of Appeals for the Second Circuit overturned class action certification [JURIST report] for a lawsuit brought by "light" cigarette smokers against Philip Morris and other light cigarette makers. The class action, which included anyone who has ever bought light cigarettes since they hit the market in the 1970s, had alleged that tobacco companies used deceptive advertising tactics to mislead smokers in response to growing health concerns over the risks of smoking cigarettes. In September 2006, a judge for the US District Court for the Southern District of New York certified the class of 50 million plaintiffs [JURIST report] for the class-action suit. Lawyers estimated that sales of light cigarettes brought tobacco companies between $120 billion and $200 billion in extra sales since 1971.




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Egypt considers term limits, presidential nomination reform
Drew Singer on February 27, 2011 11:52 AM ET

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[JURIST] The Egyptian military's judicial committee on Saturday proposed a constitutional amendment that would impose an eight-year term limit on the presidency in an attempt to prevent a repeat of the 30-year reign of former president Hosni Mubarak [Al Jazeera profile]. The proposed constitutional amendments also make it easier for a candidate to obtain a nomination. The existing Egyptian Constitution [text] required the support of 250 elected officials, whereas the proposed changes will call for the signatures of just 30 parliamentarians [Al Jazeera report]. The changes will make it more difficult for a president to maintain the state of emergency laws [text, in Arabic] that Mubarak kept in place for nearly 30 years. The committee was appointed by Egypt's military, which is running the country until an election is held in six months. The military council stated that it will issue a snap referendum [Reuters report] next month on the proposed constitutional amendments and plans to have the vote complete by the end of March.

Last week Egypt's chief prosecutor requested that Foreign Ministry officials take steps to freeze any foreign assets belonging to Mubarak [JURIST report] and his family. Prosecutor Abdel Magid made the request even though Mubarak submitted a declaration of wealth indicating that he possessed no foreign assets. Mubarak stepped down after nearly three weeks of demonstrations [Al Jazeera report] protesting the Egyptian government and calling for his resignation. His resignation left state affairs in the hands of the Egyptian Supreme Council of the Armed Forces, which pledged to lift the country's emergency laws [JURIST report] that were in place for nearly 30 years once circumstances in the country improved. The Council also vowed to have a peaceful transition to power and promised not to prosecute "honourable people who refused corruption and demanded for reform."




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UN Security Council unanimously imposes sanctions on Libya
Drew Singer on February 27, 2011 10:32 AM ET

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[JURIST] The UN Security Council [official website] on Saturday voted unanimously [press release] to impose sanctions on Libyan leader Colonel Muammar Gaddafi [NYT profile], marking the first unanimous referral to the International Criminal Court (ICC) [official website] in UN history. Resolution 1970 [text] also received support from Libya's delegation itself, which renounced Gaddafi on Friday [Reuters report]. Libya's UN Ambassador Abdurrahman Shalgam, who use to be a close confidant of Gaddafi, stated [NY Times report] that the resolution could help end the "fascist regime" in the north African country. The sanctions include an arms embargo, the freezing of assets, and a travel ban on 16 Libyan leaders. Although Libya is not a signatory to the Rome Statute [text], which created the ICC, the Security Council voted that it should nonetheless be subject to its investigation.

The UN Human Rights Council (UNHRC) [official website] on Friday adopted a resolution [text, DOC] condemning the recent violence in Libya and ordering an international inquiry into alleged abuses [JURIST report]. During a special session, the 47-member council unanimously adopted the resolution, which also calls upon the Libyan government to protect its population and respect the will of its people. UN High Commissioner for Human Rights Navi Pillay [official profile] spoke to the UNHRC [JURIST report] earlier Friday, calling for the Libyan government to stop the violence directed at protesters [transcript] and for the Council to rise to action. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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Obama administration seeks delay of 'Don't Ask Don't Tell' review
Maureen Cosgrove on February 26, 2011 4:47 PM ET

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[JURIST] The Obama administration on Friday asked [brief, PDF] the US Court of Appeals for the Ninth Circuit [official website] to delay its review of an order striking down the military's "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST news archive] because the policy will soon be ended. In December, President Barack Obama signed legislation that would repeal DADT [JURIST report] as soon as 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. Due to this, the US Department of Justice (DOJ) [official website] filed the brief requesting that the US Department of Defense (DOD) [official website] be granted more time to train the troops and take further measures outlined by Congress before the court officially rules on the case. The DOJ argued that an immediate decision would be premature:
This case will become moot upon the effective date of the repeal of § 654, rendering any judicial disposition unnecessary. That date is swiftly approaching. As a result, the Court should withhold further proceedings and decision in this matter, both out of the respect owed to the orderly repeal process undertaken by the political branches and in furtherance of the policy favoring avoidance of deciding constitutional questions unnecessarily.
The DOJ attorneys argued that, should the court reach a decision before the repeal process is complete, the court should reverse the district court decision [JURIST report] because the plaintiff lacks standing and the district court exceeded its remedial authority.

The Obama administration had sought a delay in the briefing schedule [JURIST report] in January shortly after Congress passed the Don't Ask Don't Tell Repeal Act of 2010 [materials]. In December, three former service members discharged under DADT filed a complaint against the DOD 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]. The policy was struck down by a federal judge in September, but the Ninth Circuit has since stayed that ruling [JURIST report]. 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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Spain court allows Guantanamo torture investigation to continue
Maureen Cosgrove on February 26, 2011 2:25 PM ET

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[JURIST] The Spanish National Court [official website, in Spanish] on Friday agreed to continue investigating allegations of a Moroccan man who claims that he was tortured while detained at Guantanamo Bay [JURIST news archive]. Article 23.4 of the Ley Organica del Poder Judicial (LOPJ) [text, in Spanish] authorizes Spanish courts to hear certain types of international cases, but requires that the case have a "relevant connection" to Spain [Publico report, in Spanish], following a limitation placed on universal jurisdiction [JURIST report] in 2009. The court said it was competent to take the case [Expatica report, in Spanish] because the complainant, Lahcen Ikassrien, who was held at Guantanamo from 2001 to 2005, had been a Spanish resident for 13 years. The Center for Constitutional Rights (CCR) [advocacy website] endorsed the court's decision [press release] to continue the investigation:
This is a monumental decision that will enable a Spanish judge to continue a case on the "authorized and systematic plan of torture and ill treatment" by U.S. officials at Guantanamo. Geoffrey Miller, the former commanding officer at Guantanamo, has already been implicated, and the case will surely move up the chain of command. Since the U.S. government has not only failed to investigate the illegal actions of its own officials and, according to diplomatic cables released by WikiLeaks, also sought to interfere in the Spanish judicial process and stop the case from proceeding, this will be the first real investigation of the U.S. torture program.
Judge Pablo Ruz, who replaced the controversial judge Baltasar Garzon [BBC profile; JURIST news archive], will continue overseeing the proceedings.

The court first opened the investigation in April 2009 [JURIST report], looking into torture allegations at Guantanamo Bay made by four former prisoners, including Ikassrien. The court based its decision on statements by the prisoners who claimed they were subject to various forms of physical and mental abuse during their imprisonment, as well as CIA interrogation memos [JURIST report] detailing a plan which allegedly authorized the systematic torture and mistreatment of persons who were deprived the basic rights of detainees. The alleged abuses violated the Geneva Conventions [ICRC materials], the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [UN materials], and other international treaties, the court said. In July 2005, US officials at Guantanamo Bay extradited Ikassrien to Spain [JURIST report] to answer charges that he assisted al-Qaeda cell leader Imad Eddin Barakat Yarkas in planning the 9/11 terror attacks.




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China drops death penalty for 13 non-violent crimes
John Paul Putney on February 25, 2011 3:55 PM ET

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[JURIST] The standing committee of China's National People's Congress (NPC) [official website] on Friday amended the national criminal law to remove 13 offenses from the list of crimes subject to the death penalty [JURIST news archive]. Those removed are non-violent economic crimes [Xinhua report] and include smuggling cultural relics, precious metals and rare animals; fraudulent activities with financial bills and letters of credit; fraudulent export tax refunds; teaching of crime-committing methods; and robbing ancient cultural ruins. The amendment also restricts death sentences issued to persons over 75 and is the first amendment [China Daily report] of death penalty crimes since 1979. Notably, some economic crimes, including corruption [JURIST report], were not removed from the list, and the death penalty enjoys wide public support in China [AP report]. The amendment, which will take effect on May 1, is the latest move by the Chinese government to reduce the number of death sentences ordered by the country's courts.

The amendment was originally proposed [JURIST report] in August, and Amnesty International (AI) [advocacy website] has criticized the measure as legal housekeeping because the crimes are rarely punished by execution [BBC report]. AI estimates that China executes thousands of people every year—more than the rest of the world combined—but the actual figure is a closely guarded state secret. Last February, the Supreme People's Court of China [official website, in Chinese] issued new guidelines for limiting capital punishment [JURIST report] in Chinese courts to "extremely serious" crimes.




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UN rights council condemns Libya violence
Jaclyn Belczyk on February 25, 2011 2:13 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] on Friday adopted a resolution [text, DOC] condemning the recent violence in Libya and ordering an international inquiry into alleged abuses. During a special session, the 47-member council unanimously adopted the resolution, which also calls upon the Libyan government to protect its population and respect the will of its people. According to the resolution, the UNHRC:
Expresses deep concern with the situation in Libya, strongly condemns the recent gross and systematic human rights violations committed in Libya, including indiscriminate armed attacks against civilians, extrajudicial killings, arbitrary arrests, detention and torture of peaceful demonstrators, some of which may also amount to crimes against humanity; [and] Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Council, to investigate all alleged violations of international human rights law in Libya.
UN High Commissioner for Human Rights Navi Pillay [official profile] spoke to the UNHRC [JURIST report] earlier Friday, calling for the Libyan government to stop the violence directed at protesters [statement] for the Council to rise to action.

The situation in Libya has escalated over days of continued protests and violent suppression by security forces. On Wednesday, Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] said that the ICC cannot investigate possible crimes in Libya [JURIST report] because the country is not a party to the Rome Statute [materials]. The statement came after Pillay said earlier this week that the Libyan government's response to recent protests may amount to crimes against humanity [JURIST report]. Pillay cited the use of machine guns, snipers and military planes against protesters, calling for an independent investigation. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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South Korea charges 5 captured Somali pirates
Drew Singer on February 25, 2011 2:06 PM ET

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[JURIST] South Korean prosecutor Jeong Jeom-Shik announced Friday that five Somali pirates [JURIST news archive] captured in January have been charged with six offenses, including attempted murder, maritime robbery and kidnapping. The attempted murder charge carries with it a possible life sentence. The pirates were captured during the Samho Jewelry raid [BBC report] last month, when South Korean commandos killed eight other pirates while rescuing all 21 crew members. Prosecutors believe that this is the same group of pirates responsible for hijacking another Samho ship [JoonAng Daily report], the Samho Dream, last year.

Piracy in the Gulf of Aden and the Indian Ocean is an ongoing international concern, and several countries have started taking legal action against suspected Somali pirates. Earlier this month, seven suspected Somali pirates appeared in Malaysian court [JURIST report], charged with firearms offenses and, if convicted, could face the death penalty. Malaysia was the first Asian country to take formal legal action against suspect pirates. The suspects, who did not enter pleas, were also arrested in January after allegedly firing at Malaysian authorities while hijacking a merchant ship in the Gulf of Aden. Three of the seven suspects are only 15 years old and will not face the death penalty because of their age.




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Maryland Senate approves same sex marriage legislation
LaToya Sawyer on February 25, 2011 1:10 PM ET

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[JURIST] The Maryland Senate [official website] approved legislation [text, PDF] Thursday to legalize same-sex marriage [JURIST news archive]. The bill, entitled Civil Marriage Protection Act, would alter existing legislation that validates only heterosexual marriage. Approval of the Act will give gay couples the same full rights of marriage as straight, married couples, but will allow exemptions for religious leaders who object to same-sex marriage. Passed with a 25-21 Senate vote, the bill will now be turned over to the House of Delegates [official website] which is split on the issue [WP report].

The issue of same-sex marriage continues to be hotly debated in the US. Earlier this week, the US Department of Justice (DOJ) [official website] announced that it would no longer defend the constitutionality [JURIST report] of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive], which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Earlier this week, Hawaii Governor Neil Abercrombie signed a same-sex civil unions bill into law, while last week, the Wyoming Senate approved a bill that would prevent the state from recognizing same-sex marriages [JURIST reports] and civil unions performed in other jurisdictions. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington DC [JURIST reports].




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UN rights chief calls for action to halt Libya violence
Brian Jackson on February 25, 2011 10:28 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday called on the Libyan government to stop the violence directed at protesters [statement, text] within that nation. Pillay's statement, directed at Libyan leader Muammar Gaddafi [BBC profile], reminded the UN Human Rights Council of the repeated calls by numerous nations for Gaddafi to renounce the use of violence. After describing accounts of the situation on the ground in Libya, Pillay reiterated the prior calls for a cessation to violence and called on the Council to rise to action:
[L]et us be clear that today's shocking and brutal situation is the direct outcome of a callous disregard for the rights and freedom of Libyans that has marked the almost four-decade long grip on power by the current ruler. Justice for ongoing as well as past abuses must be attained in order to be meaningful for all the victims. There can be no doubt about the need for action by this Council now. The Human Rights Council and its mechanisms should step in vigorously to help end violence in Libya and hold those perpetrating the atrocities accountable. The Council should use all means available to compel the Libyan Government to respect the human rights and heed the will of its people. The victims of human rights violations and violations of international humanitarian law deserve no less.
Also on Friday, the Libyan delegation to the UN disavowed any link to Gaddafi [Reuters report] in front of the Human Rights Council, with the Libyan envoy saying that his delegation represented the Libyan people.

The situation in Libya has escalated over days of continued protests and violent suppression by security forces. On Wednesday, Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] said that the ICC cannot investigate possible crimes in Libya [JURIST report] because the country is not a party to the Rome Statute [materials]. The statement came after Pillay said earlier this week that the Libyan government's response to recent protests may amount to crimes against humanity [JURIST report]. Pillay cited the use of machine guns, snipers and military planes against protesters, calling for an independent investigation. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform.




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New York appeals court allows surviving same-sex spouse to inherit estate
Andrea Bottorff on February 25, 2011 9:33 AM ET

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[JURIST] The New York State Supreme Court Appellate Division, First Department [official website] on Thursday upheld [opinion, PDF] a lower court decision [JURIST report] allowing the surviving spouse of a same-sex marriage to inherit the deceased spouse's estate. Kenneth Ranftle and Craig Leiby were married legally in Canada in 2008 after more than 20 years together. Ranftle died a few months later in New York, leaving most of his multi-million dollar estate to Leiby. Ranftle's brother challenged the validity of the couple's marriage and argued that recognition of the marriage violated New York public policy. The unanimous panel said in its opinion:
[T]he Legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express statutory prohibition ... legislative action or inaction does not qualify as an exception to the marriage recognition rule.
In 2008, then-governor David Paterson ordered all state agencies to recognize same-sex marriages from other states [JURIST report] as legal marriages for purposes of New York law. The order followed a decision by an intermediate New York appellate court holding that legal same-sex marriages performed outside the state are entitled to recognition [JURIST report] in New York.

The validity of same-sex marriage [JURIST news archive] continues to be hotly debated in the US. The New York appeals court decision came one day after the US Department of Justice (DOJ) [official website] announced that it would no longer defend the constitutionality [JURIST report] of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive], which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. The New York State Assembly approved same-sex marriage legislation in 2009, but the bill was later defeated [JURIST reports] in the Senate. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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Blagojevich judge grants motion to dismiss 3 charges
Carrie Schimizzi on February 25, 2011 8:07 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Illinois [official website] on Thursday granted federal prosecutors' motion to dismiss three charges against former Illinois governor Rod Blagojevich [JURIST news archive] in an apparent effort to simply their case before the April 20 retrial. Judge James Zagel agreed to dismiss [Chicago Tribune report] charges of racketeering, racketeering conspiracy and one count of wire fraud, each carrying a maximum sentence of 20 years in prison, but Blagojevich will still face 20 other charges, including attempting to sell the Senate seat vacated by US President Barack Obama, making appointments based on anticipated campaign contributions and taking kickbacks from a number of companies. At the hearing, prosecutors alluded to the fact that dropping some of the more complicated charges will simplify their case and give them a better chance of obtaining convictions on the remaining charges. In a statement, Blagojevich maintained his innocence [press release]:
Today's developments in court are three steps in the right direction in what has been along and arduous journey for my wife, for my children and for me. I will continue to fight to clear my name and prove to the people of Illinois that I didn't let them down.
Blagojevich was found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on the 23 additional charges.

In Blagojevich's first trial, the jury deliberated for 14 days after the 11-week trial but was unable to reach a consensus on all but one of the charges. According to reports, there was a lone holdout [Chicago Tribune report] on the convictions regarding the sale of Obama's Senate seat. The female juror allegedly stated that due to the lack of a "smoking gun" she was unable to convict Blagojevich of the crimes. Last September, lawyers for Blagojevich asked the judge to throw out the sole conviction [JURIST report], stating that the government failed to meet its required burden of proof and that cross-examinations by the defense were plagued by "obstructionist" objections [Chicago Tribune report], which the court continuously sustained. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008.




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Kansas House approves new abortion restrictions
Julia Zebley on February 24, 2011 2:38 PM ET

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[JURIST] The Kansas House of Representatives [official website] on Thursday approved several new restrictions on abortion [JURIST news archive]. Bills 2035 [text, PDF] and 2281 [text, ODT] passed overwhelmingly, in voice votes of 96 to 25 [text, ODT] and 91 to 30 [text, ODT], respectively. If the bills are approved by the Senate, Kansas residents will not be able to obtain an abortion after the 20-week mark, when some studies suggest a fetus can begin feeling pain. Other restrictions include a stringent parental consent and notification system for a minor's abortion and "clear and convincing" evidence for a judicial bypass of parental consent; the ability to bring a civil suit against abortion providers if they violate Kansas law; the right for criminal prosecution of abortion providers if they violate Kansas law; and for abortion providers to inform patients that the fetus is a "whole, separate, unique, living human being." Opponents of the fetal-pain regulation believe this limitation violates the Supreme Court ruling in Planned Parenthood v. Casey [text], which allows for abortions until the fetus can survive viably outside the womb, typically at 22 or 23 weeks. There is no indication when the Senate will vote on either bill, though they are both expected to pass.

The bill, similar to a recent Nebraska act [JURIST report] based on a fetal-pain guideline, was formulated partly in reaction to the assassination of late-term abortion provider doctor George Tiller [BBC report], who practiced out of Wichita. Kansas' bills are the first major actions on abortion in the US in 2011, although several state legislatures are considering similar measures. In December the Alaska Superior Court upheld a parental consent notification law, whereas in November, Colorado voters rejected an amendment [JURIST reports] that would have granted fetuses a "personhood" status, effectively banning abortion. In June, then-Florida governor Charlie Crist vetoed a bill [JURIST report] that would have required women seeking an abortion to undergo an ultrasound or listen to a detailed description of the fetus before the procedure would be performed. Oklahoma lawmakers approved a bill [JURIST report] in May requiring women seeking an abortion to complete a questionnaire containing information on marital status, reason for seeking the abortion and whether the pregnancy is the result of rape or incest. This followed laws passed the month before [JURIST report], prohibiting abortions performed because of the gender of the fetus, protecting medical employees who refuse to participate in procedures such as abortion based on religious beliefs, and regulating the use of RU-486, or mifepristone, a chemical used in abortion procedures.




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ICC declines to stay proceedings against Congo militia leader Lubanga
Daniel Makosky on February 24, 2011 1:42 PM ET

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[JURIST] The trial chamber of the International Criminal Court (ICC) [official website] on Wednesday declined [press release] a request from lawyers for accused Congolese militia leader Thomas Lubanga Dyilo [case materials; JURIST news archive] to stay the proceedings against him. The trial chamber, in a confidential ruling, rejected contentions of prosecutorial misconduct [AP report] levied by Lubanga's defense team, including allegations that prosecutors, through proxies, offered bribes to witnesses and coached testimony. Lubanga had previously been ordered released from custody and his trial stayed until prosecutors complied with a directive to provide certain information to the defense, though the ICC appeals chamber later rescinded those orders and directed [JURIST reports] the trial to proceed.

Lubanga is accused of war crimes for allegedly recruiting child soldiers to fight in the Democratic Republic of the Congo (DRC) in 2002-2003. His trial began in January 2009 but was halted soon after when one of the child witnesses recanted his testimony [JURIST report] that Lubanga had recruited him for the militia. The prosecution concluded its case [JURIST report] last July after presenting 22 weeks of testimony. Lubanga maintains he is innocent [JURIST report] of the charges against him. He became the first war crimes defendant to appear before the ICC, formed in 2002, after he was taken into custody [JURIST report] in March 2006.




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Law professors ask Congress to subject Supreme Court justices to ethics rules
Daniel Richey on February 24, 2011 12:56 PM ET

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[JURIST] A group of law professors asked Congress Wednesday to extend the Code of Conduct for United States Judges [text, PDF] to apply to the Supreme Court [official website]. In a letter [text, PDF] to the House and Senate Judiciary Comittees [official websites], more than 100 law professors representing 67 schools urged Congress to advance legislation to apply the Code to Supreme Court justices, establish a procedural framework for enforcement, require a written opinion for every denial of a motion to recuse and create a review procedure for those decisions. In support of their position, the professors cited the court's own ruling in Caperton v. AT Massey Coal [JURIST report], a 2009 case in which the court decried the self-judging of ethics issues by judges. The group argued that, by its own reasoning, the lack of review for the same judgments made by Supreme Court justices is inappropriate:
Unlike Caperton, where the Supreme Court reversed the self-judged view of a single state court judge, there is no review procedure for recusal decisions by Supreme Court justices. Individual justices rule themselves on motions to recuse, or decide sua sponte to recuse in cases where no motion is filed. No written opinion is required in either situation. The opacity and non-reviewability of this process erodes public confidence in the integrity of the Court. The fundamental principle that "no man may be a judge in his own case" was articulated by Lord Coke in the seventeenth century, yet inexplicably we still allow Supreme Court justices to be the sole judge of themselves on recusal issues.
Rep. Chris Murphy (D-CT) [official website] announced last week that he plans to introduce a bill [press release] to address such ethical issues.

Wednesday's letter comes amid a wave of criticism for the court as a series of politically charged and divisive decisions has been followed by accusations of ethically troubling activities by justices Clarence Thomas, Antonin Scalia and Samuel Alito [Oyez profiles]. Of particular focus have been questions surrounding Thomas and Scalia's relationships with conservative businessmen David and Charles Koch, owners of Koch Industries [corporate website], a multibillion dollar company with large oil, gas and paper operations which is involved in hundreds of cases currently before federal judges. In January, Common Cause [advocacy group] petitioned [text] the Department of Justice (DOJ) [official website] to investigate the justices' relationship with the company and the impact it may have had on the court's controversial 5-4 decision [text, PDF; JURIST report] in Citizens United v. Federal Election Commission [materials] last year. Thomas has also fallen under fire for his wife's founding of Liberty Consulting [corporate website], a right-leaning political consultancy, shortly after leaving her position as the head of Liberty Central [NYT report], a conservative website with ties to the Tea Party movement.




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US hate groups continuing to increase: report
Sarah Paulsworth on February 24, 2011 10:22 AM ET

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[JURIST] The number of hate groups in the US rose to more than 1,000 [press release] during 2010, according to a report [text] released Wednesday by the Southern Poverty Law Center (SPLC) [advocacy website]. The SPLC reports this is the first time that these types of groups have exceeded 1,000 since the it started its monitoring in the 1980s. According to SPLC's hate group map [official map] the highest number (68) of hate groups exist in California, while the lowest number (0) were reported in Alaska and Hawaii. The SPLC also noted that more than 300 new "Patriot" movements [complete list] appeared in 2010. These groups embrace conspiracy theories about the US government and tend to view the government as their enemy. Finally, there are now 319 Nativist extreme groups [complete list] in the US. The classification of some groups has been disputed. In particular, House Speaker John Boehner (R-OH) [official profile] and Minnesota State Rep. Michele Bachmann of Minnesota protested [CSM report] the SPLC's listing of the conservative Family Research Council as a hate group. SPLC has defended the classification saying that the groups deliberately disseminated untrue information about gay people. In its report, SPLC cites a number of dramatic incidents, including the shooting [JURIST report] of Congresswoman Gabrielle Giffords (D-AZ) [official website] and the January arrest of a neo-Nazi at the Arizona border who was armed with grenades, as acts of "terrorism" committed by the swelling number of radical groups in the US.

In June of last year, federal prosecutors filed additional charges [superseding indictment, PDF] against four members of the "Christian warrior" militia, Hutaree, alleging possession of machine guns and unregistered rifles [JURIST report], as well as use of firearms during a violent crime. Nine members of the militia were originally indicted [JURIST report] in March on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials, and possessing a firearm during a crime of violence in connection with a plan to kill Michigan law enforcement officers. Four members of the militia, including one of the men named in the new indictment, were released on bail [JURIST report] one month earlier. Militia groups such as the Hutaree are reportedly on the rise in the US. A recent report by the Simon Wiesenthal Center [advocacy website] suggests that a lack of regulation on the Internet [JURIST report] is fueling this increased prevalence. A 2009 report [JURIST comment] by SPLC noted that these groups are making a comeback [JURIST report] after declining in number for several years. The SPLC said that such groups are generally anti-tax, anti-immigration, and increasingly racially motivated since the election of the country's first African-American president, Barack Obama. The SPLC also warned that these groups could soon pose a security risk to the country, quoting one official as saying "[a]ll it's lacking is a spark. I think it's only a matter of time before you see threats and violence."




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Hawaii governor signs same-sex unions bill into law
Sarah Paulsworth on February 24, 2011 9:04 AM ET

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[JURIST] Hawaii Governor Neil Abercrombie (D) [official profile] signed [official pres release] the same-sex civil unions bill [SB 232 text, PDF] into law on Wednesday, legalizing same-sex civil unions [JURIST news archives] in the state. The legislation will go into effect on January 1, 2012, and extends the same rights, benefits, protections and responsibilities of spouses in a marriage to partners in a civil union. At the signing, Abercrombie said, "[t]he legalization of civil unions in Hawai'i is long overdue. ... Civil unions respect our diversity, protect people's privacy, and reinforce our core values of equality and aloha." Last week, Hawaii's Senate [official website] voted [JURIST report] 18-5 [bill history] to give final approval to the bill. Prior to that, Hawaii's House of Representatives approved the same bill [JURIST report]. A similar bill was vetoed [JURIST report] in July by former governor Linda Lingle (R), who felt that, because it was an issue of "such significant societal importance," it was better suited for a vote in a public referendum. Hawaii is now the seventh state to offer essentially the same benefits and protections afforded to marriages to civil unions.

Earlier this month, Illinois Governor Pat Quinn (D) signed a bill [JURIST report] legalizing same-sex civil unions in the state. The "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." Additionally, it will allow religious institutions within the state to choose whether to observe or officiate the union. Opponents fear that this bill will move Illinois closer to legalizing same-sex marriage [JURIST news archive] and threaten the sanctity of marriage. The new law is set to take effect on June 1. In contrast, last month the Wyoming Senate voted 20-10 in favor of a constitutional amendment [JURIST report] that would prevent the state from recognizing same-sex marriages from any jurisdiction. The decision, which was split down party lines, will 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 (R) and then appear as a referendum item on the 2012 ballot. The following day, the House Judiciary Committee also voted 5-4 [Star-Tribune report] to defeat House Bill 150, which would have recognized civil unions in the state.




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Indiana Senate approves Arizona-style immigration bill
Ann Riley on February 24, 2011 8:49 AM ET

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[JURIST] The Indiana Senate [official website] on Tuesday approved a bill [SB 590 text; bill materials] by a vote of 31-18, proposing a strict illegal immigration [JURIST news archive] policy comparable to the controversial Arizona law [JURIST news archive]. The bill would require individuals suspected of being illegal to provide proof of their legal status and calls for all public meetings, websites and documents to be in English only. Illegal immigrants would also be ineligible for in-state tuition rates, financial aid, grants or scholarships at Indiana state colleges and universities. Following the vote, Senator Mike Delph (R) [official website], author of the legislation, said [press release]:
Today's vote was a key step in the legislative process. I will continue to work with my fellow lawmakers to send a clear message that Indiana will no longer be a sanctuary for people who are in our state and country illegally because of our federal government's failure to act on illegal immigration. It's time that we put an end to press one for English and two for Spanish in our state. We also must remove the handcuffs from our law enforcement by providing them with the tools and training necessary to identify individuals in our country illegally and then transfer them to federal custody.
Various Indiana employers and business groups oppose the legislation [Reuters report], including the Greater Indianapolis Chamber of Commerce [official website], which says it will have a chilling effect on business. The legislation would strip businesses of tax deductions for each illegal employee and require the use of the E-Verify System to check the eligibility status of employees. The bill now moves to the Indiana House of Representatives.

Earlier this week, the Utah House of Representatives [official website] also passed [JURIST report] an Arizona-style immigration law. Unlike its Arizona predecessor, the Utah immigration bill does not provide an avenue for private citizens to sue local police who do not enforce the law. The issue of illegal immigration [JURIST news archive] has been the subject of legislation and lawsuits across the country, and several states have enacted or proposed legislation [JURIST reports] similar to the controversial Arizona immigration law. The Arizona law, which has been widely criticized as unconstitutional for allegedly legalizing racial profiling, has sparked a nationwide debate on immigration policy, prompting calls for immigration reform [JURIST report] from President Barack Obama [official profile]. In October, a judge for the US District Court in the District of Arizona [official website] denied [order, PDF] motions to dismiss a class action lawsuit [JURIST report] challenging the constitutionality of the Arizona law. Two other lawsuits [JURIST report] challenging the law were filed last year and are still pending.




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Libya leader alleged to have ordered Lockerbie bombing
Ann Riley on February 24, 2011 7:53 AM ET

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[JURIST] Former Libyan Justice Minister Mustafa Abel-Jalil on Wednesday alleged that Muammar Gaddafi [BBC report] ordered [Expressen report, in Swedish] the 1988 Lockerbie [BBC backgrounder; JURIST news archive] bombing, according to Swedish newspaper Expressen [website, in Swedish]. During the 40-minute interview, Abel-Jalil, who resigned [AP report] earlier this week in opposition of the country's violent response to protesters [JURIST report], claimed to have evidence that Gaddafi gave direct orders to Abdelbaset Ali Mohmet al-Megrahi [BBC profile; JURIST news archive] to conduct the bombing. Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. Megrahi, a former Libyan intelligence official, was released from custody [JURIST report] in August 2009 on compassionate grounds after being diagnosed with terminal cancer and subsequently returned to his native Libya. Libyan officials began lobbying for Megrahi's release after his diagnosis in September 2008, stating that allowing Megrahi to die in Scottish custody would be the equivalent of a death sentence. Libyan officials threatened "severe ramifications to UK interests" if Megrahi was not released. According to Abel-Jalil, Gaddafi did everything in his power to have Megrahi released and returned from Scotland, while concealing his own involvement.

Earlier this month, the UK's top civil servant reported [JURIST report] that the previous administration "[did] all it could" to facilitate a Libyan appeal to allow for the release of Megrahi from a Scottish prison, but that the decision-making power was solely within the province of the Scottish Government. Last August, the Obama administration urged Libyan authorities to return Megrahi to a Scottish prison [JURIST report] to serve the remainder of his sentence. Also in August, the opposition Scottish Labour Party [party website] called for the publication of all medical evidence [JURIST report] related to Megrahi's release. In July, US lawmakers called for an investigation [JURIST report] into the role that British Petroleum (BP) [corporate website; JURIST news archive], which was engaged in contract negotiations to explore drilling in Libya and was suffering "significant financial loss" while these contracts remained unsigned, may have played in Megrahi's release. Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland that killed all 259 on board [memorial website] and 11 others, including 180 Americans.




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ICTY convicts former Serbian official Djordjevic
Aman Kakar on February 23, 2011 2:41 PM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday convicted [judgment, PDF] former senior Serbian police official Vlastimir Djordjevic [ICTY backgrounder, PDF; case materials] on five counts of crimes against humanity and war crimes, sentencing him to 27 years [press release]. Djordjevic was convicted of committing racial persecution through deportation and forcible transfer through his participation in a joint criminal enterprise and two counts of murder—one as a crime against humanity and the other as a violation of the laws or customs of war under Article 3 and 5 of the Statute of the ICTY [statute; PDF], which resulted in the death of at least 724 Kosovo Albanians. Djordjevic was the Assistant Minister of the Serbian Ministry of Internal Affairs (MUP) and Chief of its Public Security Department (RJB) during a period of war crimes against Kosovo Albanians in 1999. Djordjevic claimed that he did not have effective control over the MUP. The ICTY rejected his argument, citing evidence that Djordjevic knew of the unlawful police conduct, coordinated the work of MUP forces, had lawful powers and exercised control over the police in Kosovo, and played a critical role in the execution of the criminal enterprise. Djordjevic was held responsible for the March 26, 1999, shooting and torching of 114 men and boys, deportation of 200,000 Kosovo Albanians and for playing a leading role in concealing the murder of Kosovo Albanians. Vlastimir Djordjevic is the eighh former senior Serbian official to be tried for the crimes committed in Kosovo and the sixth to be convicted.

The ICTY began the war crimes trial [JURIST report] against Djordjevic in January 2009. Djordjevic was arrested [JURIST report] in 2007 and formally indicted [indictment, PDF] in July 2008 for his participation in crimes against humanity, murder and illegal deportation. The ICTY has also pursued criminal action against other leaders in the Kosovo conflict. On Tuesday, the ICTY began the trial [JURIST report] of former Serb nationalist politician Vojislav Seselj on charges that he released the names of 11 ICTY witnesses in violation of a confidentiality order. Last week, the ICTY ordered a six-week suspension [JURIST report] of the trial of former Bosnian Serb leader Radovan Karadzic so he could review material sent to him by the prosecution. Former Yugoslavian president Slobodan Milosevic [ICTY case materials; JURIST news archive] was tried for committing war crimes in the region, but died before a verdict could be issued. The ICTY acquitted [JURIST report] former Kosovo Prime Minister and Kosovo Liberation Army (KLA) commander Ramush Haradinaj of all war crimes charges. Haradin Bala was convicted [UN Press release] and sentenced to 13 years in prison for his involvement with the KLA and the torture of prisoners of war. Two others were acquitted in that case.




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Supreme court upholds California timeliness rule for habeas petitions
Sarah Miley on February 23, 2011 1:46 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] unanimously in Walker v. Martin [Cornell LII backgrounder; JURIST report] that a state law barring a prisoner from collaterally attacking his conviction is adequate to support a procedural bar to filing a habeas corpus petition. The decision upholds a California state law preventing prisoners from collaterally attacking their judgment when the prisoner "substantially delayed" filing his habeas petition. Writing the opinion for the court, Justice Ruth Bader Ginsburg noted that the court has the responsibility to ensure that state procedural claims do not discriminate against claims of federal rights, but determined that California's timeliness rule does not operate to the particular disadvantage of such rights of the petitioner. Ginsburg stated that recent precedent [JURIST report] gave clear guidance on the issue:
In a recent decision, Beard v. Kindler, ... this Court clarified that a state procedural bar may count as an adequate and independent ground for denying a federal habeas petition even if the state court had discretion to reach the merits despite the default. Guided by that decision, we hold that California is not put to the choice of imposing a specific deadline for habeas petitions (which would almost certainly rule out Martin's nearly five-year delay) or preserving the flexibility of current practice, but only at the cost of undermining the finality of state court judgments. In so ruling, we stress that Martin has not alleged that California's time bar, either by design or in operation, discriminates against federal claims or claimants.
The judgment reversed Ninth Circuit decision [opinion, PDF], which held that the state's law was not well-established or "consistently applied" and therefore did not constitute a procedural bar to collaterally attacking the conviction.

The petitioner, Charles Martin, was sentenced to life without parole for murder and filed a habeas petition alleging ineffective assistance of counsel in the California Supreme Court, nearly fives years after his conviction became final. He had no explanation for the delay in the filing. The court dismissed Martin's claim as untimely under the California law. Having exhausted his state remedies, Martin filed a federal habeas petition in the US District Court for the Eastern District of California [official website] raising the same issues. The district court dismissed the petition as untimely stating that the rejection "rested on an adequate and independent state ground, i.e., Martin's failure to seek relief in state court without substantial delay."




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ICC lacks jurisdiction to investigate Libya crimes: chief prosecutor
Sarah Posner on February 23, 2011 1:42 PM ET

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[JURIST] Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] said Wednesday that the ICC cannot investigate possible crimes in Libya [press release] because the country is not a party to the Rome Statute [materials]. Moreno-Ocampo noted that the ICC lacks the authority to intervene until Libya accepts the court's jurisdiction or the UN refers the situation to the ICC, stating:
The decision to do justice in Libya should be taken by the Libyan people. Currently, Libya is not a State Party to the Rome Statute. Therefore, intervention by the ICC on the alleged crimes committed in Libya can occur only if the Libyan authorities accept the jurisdiction of the Court, (through article 12(3) of the Rome Statute). In the absence of such step, the United Nations Security Council can decide to refer the situation to the Court. The Office of the Prosecutor will act only after either decision is taken
UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday urged the Libyan government to end to human rights abuses [JURIST report], stating that the government's response to recent protests may amount to crimes against humanity [press release]. Pillay called for an end to human rights abuses, citing the use of machine guns, snipers and military planes against protesters, and emphasized the need for an independent investigation.

The situation in Libya has escalated over days of continued protests and violent suppression by security forces. On Monday, Saif al-Islam, son of Libyan leader Muammar Gaddafi [BBC profile], announced in a televised address [video] following several days of protests that the Libyan government is considering adopting a constitution [JURIST report] and allowing greater freedoms. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform since the start of protests in Benghazi, Libya's second city. Last week, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in Bahrain and elsewhere, referencing recent attempts to quell protests sweeping across the Middle East and North Africa.




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Supreme Court allows state seat belt action to proceed
Daniel Makosky on February 23, 2011 1:23 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday unanimously reversed [opinion, PDF] a California appeals court ruling [opinion, PDF] in Williamson v. Mazda Motors of America [docket], finding that a federal minimum safety standard [text] does not preempt state tort actions. The court held that compliance with Federal Motor Vehicle Safety Standard No. 208 [text], which requires automobile manufacturers to install lap and shoulder seat belt assemblies only for a vehicle's outboard seating and permits lap-only seat belts at the inboard seating, does not bar a state tort action alleging that the manufacturer should have installed lap and shoulder restraints in the latter seating positions. Writing for the unanimous court, Justice Stephen Breyer stated that the regulations represent minimum standards and that they do not exempt manufacturers from liability:
The more important reason why [the US Department of Transportation] did not require lap-and-shoulder belts for rear inner seats was that it thought that this requirement would not be cost-effective. ... But that fact - the fact that DOT made a negative judgment about cost effectiveness - cannot by itself show that DOT sought to forbid common law tort suits in which a judge or jury might reach a different conclusion.
Per the court, preemption would only have been proper had the "significant objective" of the regulation been to provide manufacturers with a choice between seat belt types.

The court heard arguments [oral arguments transcript, PDF; JURIST report] on the matter in November, during which time counsel for the petitioners, joined by the US government as amicus curiae, argued that "[t]he claim is not preempted, because it is perfectly consistent with and would not frustrate the objectives of the operative 1989 version of Standard 208 governing Type 2 seat belts in rear seats." The petitioners also claimed that Mazda [corporate website] had a duty to warn of safety risks associated with lap-only seat belts under Wyeth v. Levine [opinion, PDF; JURIST report], in which the Supreme Court ruled that federal approval of labels giving warnings about effects of drugs does not bar lawsuits under state law claiming inadequate warnings of a health risk. Counsel for respondents countered that the claim should be preempted because the federal government did not merely provide a minimum standard, but left the option to the manufacturer because of safety trade-offs for each type of seat belt. The court granted certiorari [cert. petition, PDF; JURIST report] in May.




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DOJ to stop defending federal law barring same-sex marriage
Hillary Stemple on February 23, 2011 1:10 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] announced Wednesday that it will no longer defend the constitutionality [press release] of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive], which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Attorney General Eric Holder [official profile] acknowledged that the announcement marks a change in policy for the DOJ and the Obama administration, but noted that the change was necessary due to cases pending in the US Court of Appeals for the Second Circuit [official website]. Holder explained that when the DOJ previously defended DOMA it had done so in jurisdictions with binding precedent stating that a permissive standard of review was applicable to laws dealing with sexual orientation. Holder indicated that both he and President Barack Obama [official website] believe that laws concerning sexual orientation should be subject to a higher standard of review and that DOMA is unconstitutional when considered under that standard, stating:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.
In addition to declining to defend DOMA, Holder indicated that DOJ attorneys will advise courts with pending DOMA litigation that they believe that DOMA should be subjected to a heightened level of scrutiny. Holder also emphasized that Section 3 of DOMA does remain in effect and that the Executive Branch will continue enforcing the law, even though they believe it is unconstitutional.

Last month, the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA. The appeal followed a July ruling [JURIST report] by the US District Court for the District of Massachusetts, which found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. In its brief, the DOJ argued 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." Massachusetts, the first state to recognize gay marriage, initiated the suit [JURIST report] against the federal government in July 2009. In November, the Gay and Lesbian Advocates and Defenders (GLAD) and the American Civil Liberties Union (ACLU) [advocacy websites] filed separate lawsuits [JURIST report] challenging DOMA. Plaintiffs in the GLAD case allege that they have been denied certain marriage benefits and protections that are available to similarly situation heterosexual couples in Connecticut, New Hampshire and Vermont. The plaintiff in the ACLU case is challenging provisions of DOMA that deprive of her certain tax deductions she would receive as a widow.




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Supreme Court hears arguments in sentence reduction, patent infringement cases
Brian Jackson on February 23, 2011 1:07 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF; merit briefs] in two cases: one determining whether a court may modify a sentence when the US Sentencing Commission [official website] has subsequently lowered the sentence range and the other examining the state of mind necessary for finding inducement of patent infringement. In Freeman v. United States [oral arguments transcript, PDF], the court will determine whether 18 USC § 3582(c)(2) [text] permits adjustment of a sentence when a defendant pleads guilty and Federal Rule of Criminal Procedure 11(c)(1)(C) (FRCP) [text, PDF] applies. The defendant, William Freeman, pleaded guilty to drug and firearms offenses and was sentenced to 106 months in prison pursuant to a plea agreement. The district court accepted that agreement, and, pursuant to FRCP 11(c)(1)(C), that sentence followed federal sentencing guidelines and was binding on the court. The US Sentencing Commission later lowered the level for crack cocaine sentencing, and Freeman moved for a sentence reduction. Freeman's attorney argued that the US Court of Appeals for the Sixth Circuit, which affirmed the district court's refusal to adjust, misread the statute and Congressional intent. Particularly, counsel for petitioner argued that FRCP 11(c)(1)(C) had been in effect for 10 years when § 3582(c)(2) was passed, and Congress did not include an exception for pleas made pursuant to the rule. The government argued that adjustment pursuant to § 3582(c)(2) is permissible only when the sentence is based on a sentencing guideline that is subsequently lowered, and as Freeman agreed to a sentence, as opposed to having one imposed through a guilty verdict, he does not meet the requirements for reduction. In one exchange, Justice Antonin Scalia noted that the government seems to construe "based on" as "absolutely determined by" and stated, "the guidelines form part of the the consideration of the judge, but the judge's decision is not based on the guidelines" to which the government's attorney responded that the proper test is whether the guidelines were of legal consequence in the determination to accept the plea.

In Global-Tech Appliances, Inc. v. SEB, SA [oral arguments transcript, PDF; JURIST report], the court will determine whether the state of mind necessary for for a finding of inducing patent infringement is "deliberate indifference of a known risk" as elucidated by the US Court of Appeals for the Federal Circuit or "purposeful, culpable expression and conduct", as stated by the court in MGM Studios, Inc. v. Grokster, Ltd. [Oyez backgrounder]. Under 35 USC § 271(b) [text], a patent owner may bring suit against an individual "who actively induces infringement of a patent." The petitioners stood accused of inducing infringement of a patented deep fryer produced by SEB. The trial court allowed the issue to go to the jury, denying petitioners' motion to dismiss, at the conclusion of the presentation of evidence even though petitioners had no knowledge of SEB's patent. The Federal Circuit affirmed, using the "deliberate indifference to a known risk" standard. Counsel for petitioners argued that that the Supreme Court has already announced the necessary state of mind in Grokster and that active inducement requires purposeful conduct. Justice Ruth Bader Ginsburg, challenging counsel for the petitioners, noted that the infringement opinion, which petitioners sought and relied on heavily in their argument, was not well-informed, stating, "[b]ut [they] didn't tell that patent attorney that they had reverse-engineered a particular product. If the attorney had been told this device copied the SEB fryer, isn't it 99 and 44/100ths percent sure that the attorney then would have found this patent?" Scalia quickly followed up, focusing on why petitioners did not tell the infringement opinion attorney about their reverse-engineering of the SEB product. Petitioner's counsel answered that, "their practice was not to notify the attorney." Counsel for SEB argued that actual knowledge of the patent would be an appropriate standard for finding inducement, provided that "willful blindness" be accepted as a means of proving actual knowledge, even though neither "knowing" nor "knowledge" appear in that portion of the statute.




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Federal judge dismisses health care challenge
Matt Glenn on February 23, 2011 9:31 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] ruled [opinion] Tuesday that Congress acted within its constitutional powers in passing the health care reform law [text; JURIST news archive] and that the law does not violate the religious freedom of plaintiffs who challenged the law. Judge Gladys Kessler dismissed the suit filed by the American Center for Law and Justice [advocacy website] on behalf five individuals, three of whom refuse to use medicine, arguing that doing so indicates a lack of trust in God, and two of whom believe in holistic medicine that they contend will not be covered by insurance. Kessler found that Congress had the power to pass the Patient Protection and Affordable Care Act (PPACA), including the requirement that all individuals purchase insurance, under the Constitution's Commerce Clause [Cornell LII backgrounder] which gives Congress broad powers to regulate economic activity. She then found that the individual mandate does not violate the Religious Freedom Restoration Act [42 USC § 2000bb text], which generally prohibits the government from substantially burdening a person's exercise of religion, even through laws of general applicability, absent a compelling government interest. Since the PPACA allows individuals to make a payment in lieu of coverage and the individual mandate is essential to the PPACA, "the Court conclude[d] that (1) [the individual mandate] does not place a substantial burden on the exercise of Plaintiffs' Christian faith, and (2), even assuming that it does, it is the least restrictive means of serving a compelling government interest."

The health care reform law is the subject of numerous legal challenges and inconsistent rulings across the country. Last week, the US Department of Justice (DOJ) asked federal judge Roger Vinson to clarify that states must continue to enact the PPACA [JURIST report] as the government appeals from Vinson's January ruling finding the law unconstitutional. 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 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 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.




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Algeria government lifts 19-year state of emergency
Julia Zebley on February 23, 2011 7:42 AM ET

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[JURIST] The Algerian Council of Ministers on Tuesday approved a draft ordinance repealing the country's 19-year state of emergency, delivering on a promise made the week before [JURIST report]. The draft ordinance will have the force of law upon publication in the Official Journal of Algeria [official website], which the Council of Ministers said would be "imminent." The state of emergency, which has been in place since a series of decrees [92-44, 92-75, 92-320, PDF; in French] in 1992, gave the government power to limit political freedoms and even peaceful protests. Opponents also claimed that the state of emergency gave rise to arbitrary detentions. President Abdelaziz Bouteflika announced earlier in the month [AFP report] that the order would be lifted and maintained that protests have not been discouraged: "[n]o law or order has ever forbidden any legal formation or association." However, he declared the state capital of Algiers would remain off-limits to protests. Anti-government protests began in January, in defiance of the state of emergency's stipulations, with the most recent protests on Saturday in Algiers [Al Jazeera report]. The protests in the city capital were met by riot police, although no violence was reported.

Algeria has been under a state of emergency since 1992 when the military canceled elections [WP report] fearing a win by religious fundamentalists. The state of emergency was declared [DOS backgrounder] after it became apparent that the militant Islamic Salvation Front (FIS) would win control of the government. Bouteflika came to power, winning the presidency in 1999 with 70 percent of the official vote and appearing to have the backing of the military. He and the Council of Ministers' willingness to appease protesters appears connected to the protests that have swept across the Middle East and North Africa since protesters in Tunisia ousted President Zine al-Abidine Ben Ali [JURIST report] last month. Saif al-Islam, son of Libyan leader Muammar Gaddafi [BBC profile], announced in a televised address [JURIST report] following several days of protests that the Libyan government is considering adopting a constitution and allowing greater freedoms. Earlier this month, President Hosni Mubarak [Al Jazeera profile] announced his resignation [JURIST report] amid unrelenting protests across Egypt. Iranian opposition leader Mehdi Karroubi [JURIST news archive] was placed under house arrest [JURIST report] in relation to calls by Karroubi and fellow opposition leader Mir Hossein Mousavi [JURIST news archive] for rallies in support of the recent political reform movements in Tunisia and Egypt.




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Supreme Court hears arguments on enumerated powers, speedy trial deadlines
Andrea Bottorff on February 22, 2011 3:42 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday heard oral arguments [day call, PDF; merit briefs] in Bond v. United States [oral arguments transcript, PDF; JURIST report] on whether a criminal defendant may challenge the constitutionality of a federal criminal statute under the Tenth Amendment [text]. Carol Anne Bond was charged with burning her husband's mistress using poisonous chemicals and was indicted under a federal law [18 USC § 229(a) text] created to stop the distribution and use of chemical weapons under the 1993 Chemical Weapons Convention [UN backgrounder]. The US Court of Appeals for the Third Circuit held [opinion, PDF] that Bond lacked standing to challenge the constitutionality of the statute on the basis of the Tenth Amendment because she was an individual acting on her own and not with a state. Counsel for the government said that it would be unfair if Bond raised a Tenth Amendment argument that the federal government overstepped its power and violated a state's ability to make its own law, because the state would not be a party to the case and unable to represent its own interests. Counsel for Bond argued that she has standing to challenge the federal law because the "liberty interest she seeks to vindicate is her own, not some third party's," such as the state's.

In United States v. Tinklenberg [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether time taken to process a pretrial motion is excluded from the maximum 70-day deadline allowed under the Speedy Trial Act of 1974 [18 USC § 3161(h)(1)(D) text], or whether the time is excluded only if the pretrial motion postpones, or is expected to postpone, the trial. Jason Louis Tinklenberg was convicted of making methamphetamine and appealed his conviction arguing that his trial started after the deadline required by federal statute. The US Court of the Appeals for the Sixth Circuit ruled [opinion, PDF] that Tinklenberg's indictment should have been dismissed because the postponed date of the trial violated the Speedy Trial Act. Counsel for the government argued that the court should uphold precedent, saying that "[f]or more than 30 years, the courts of appeals had uniformly held that the exclusion applies automatically upon the filing of any motion, regardless of its effect on the trial schedule." Counsel for Tinklenberg argued that the court should use the "ordinary meaning" of the language in the statute, finding that the trial was delayed unlawfully.




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Supreme Court to hear workers compensation, arbitration cases
Jaclyn Belczyk on February 22, 2011 3:03 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday granted certiorari [order list, PDF] in two cases. In Pacific Operations Offshore, LLP v. Valladolid [docket; cert. petition, PDF], the court will consider when an outer continental shelf worker, injured on land, is eligible for compensation under the Outer Continental Shelf Lands Act (OCSLA) [43 USC §§ 1331-1356 text]. The OCSLA governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries, and workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." Juan Valladolid worked for Pacific Operations Offshore, stationed primarily on an offshore drilling platform, but was killed on the grounds of Pacific Operations' onshore oil processing facility when he was crushed by a forklift. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] "that the OCSLA workers' compensation provision ... applies to any injury resulting from operations on the outer continental shelf, regardless of the location of the injury. An injury is 'the result of' outer continental shelf operations if there is a substantial nexus between the injury and the operations." There is a circuit split on this issue.

In Stok & Associates v. Citibank [docket; cert. petition, PDF], the court will determine whether, under the Federal Arbitration Act (FAA) [9 USC §§ 1-14], a party should be required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable. Stok & Associates filed suit against Citibank, which sought to compel arbitration pursuant to an arbitration clause in their contract. The US Court of Appeals for the Eleventh Circuit found [opinion, PDF] that Citibank had not waived its right to arbitration. There is also a circuit split on this issue.




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Libya may be committing crimes against humanity: UN rights chief
John Paul Putney on February 22, 2011 2:27 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] said Tuesday that the Libyan government's response to recent protests may amount to crimes against humanity [press release]. Pillay cited the use of machine guns, snipers and military planes against protesters, calling for an independent investigation. She also urged an immediate end to the serious human rights violations, denouncing the "callousness" of the Gaddafi government:
The state has an obligation to protect the rights to life, liberty and security. ... Protection of civilians should always be the paramount consideration in maintaining order and the rule of law. The authorities should immediately cease such illegal acts of violence against demonstrators. Widespread and systematic attacks against the civilian population may amount to crimes against humanity.
Pillay indicated support for efforts led by the UK to call an emergency session of the UN Human Rights Council (UNHRC) [official website] on Libya, but the decision rests with the UNHRC, of which Libya is a member.

The situation in Libya has escalated over days of continued protests and violent suppression by security forces. On Monday, Saif al-Islam, son of Libyan leader Muammar Gaddafi [BBC profile], announced in a televised address [video] following several days of protests that the Libyan government is considering adopting a constitution [JURIST report] and allowing greater freedoms. The protests began last week following those that have occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform since the start of protests in Benghazi, Libya's second city, which was reported to be largely under the control of demonstrators [UKPA report] following the retreat of police and military forces and reported defections by military personnel over the weekend. On Thursday, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in Bahrain and elsewhere, referencing recent attempts to quell protests sweeping across the Middle East and North Africa.




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Thailand court releases 9 opposition protest leaders
Sarah Posner on February 22, 2011 1:32 PM ET

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[JURIST] A Thai court on Tuesday released on bail seven "red shirt" [BBC profile; JURIST news archive] opposition leaders detained during anti-government protests [JURIST news archive] that began last March. The leaders were arrested last spring on terrorism charges [AFP report] during the demonstrations. During their detention, red shirts organized peaceful rallies calling for the opposition leaders to be released. Red shirt supporters applauded the court's decision, as supporters waited outside of the prison for the defendants to be released. Thailand's political system remains unstable following the violence and protests in Bangkok.

Last month, Thailand's red shirt pro-democracy movement petitioned [press release] the International Criminal Court (ICC) [official website] to launch a preliminary investigation [JURIST report] into whether the government committed crimes against humanity during the protests last spring. In August, a group of opposition leaders pleaded not guilty [JURIST report] to charges of terrorism in connection with the recent political violence, as the government partially lifted the state of emergency that has been in place since May.




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Supreme Court rules vaccine makers immune from design defect suits
Ashley Hileman on February 22, 2011 1:18 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 6-2 in Bruesewitz v. Wyeth [Cornell LII backgrounder; JURIST report] that section 22(b)(1) [text] of the National Childhood Vaccine Injury Act of 1986 provides blanket immunity to vaccine manufacturers from all tort actions filed in state or federal court alleging design defects. The issue in this case arises from the text of the section itself, which expressly preempts certain design defect claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." Petitioners argued that their suit, alleging poor design, should not be preempted, as the side effects were avoidable. However, the court affirmed the ruling of the US Court of Appeals for the Third Circuit, which held [opinion, PDF] that section 22(b)(1) preempts all vaccine design defect claims, regardless of whether the vaccine's side effects were avoidable. Relying on textual interpretation and the ultimate purpose of the act, Justice Antonin Scalia wrote for the majority:
The "even though" clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered "unavoidable" under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.
Justice Stephen Breyer, concurring with the majority, recognized the validity of its textual argument but called its reliance on the textual question alone a "close one" and emphasized the use of other sources including legislative history, statutory purpose and the views of the federal administrative agency to reinforce the court's conclusion. In contrast, Justice Sonia Sotomayor, in her dissenting opinion joined by Ruth Bader Ginsburg, interpreted the text quite differently and referenced other uses of similarly worded clauses within the act to reinforce her view that the "even though" clause sets forth a condition, which in this case has not been met, to invoke section 22(b)(1)'s defense to tort liability. Justice Elena Kagan took no part in deciding the case.

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




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Supreme Court upholds railroad challenge to discriminatory taxation
Maureen Cosgrove on February 22, 2011 11:41 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 7-2 in CSX Transportation, Inc. v. Alabama Department of Revenue [Cornell LII backgrounder] that a railroad may challenge sales and use taxes that apply to rail carriers but exempt their competitors in the transportation industry. Railroads pay a 4 percent sales tax and a 4 percent use tax to the state of Alabama when they purchase or consume diesel fuel. Interstate motor and water carriers—the primary competitors of railroad carriers—are exempt from paying these taxes.The petitioners, CSX Transportation, argued that the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act) [text] restricts the ability of state and local governments to levy discriminatory taxes on rail carriers. The respondents argued that the court's decision in Department of Revenue of Ore. v. ACF Industries, Inc. [materials] to uphold a property tax exemption, as well as principles of federalism, should lead the court to find in the respondents' favor. In an opinion authored by Justice Elena Kagan, the court disagreed, holding that tax exemptions are often discriminatory:
[T]ax exemptions are an obvious form of tax discrimination. ... It is hardly self-evident why Congress would prohibit a State from charging a railroad a 4% tax and a competitor a 2% tax, but allow the State to charge the railroad a 4% tax and the competitor nothing. The latter situation would frustrate the purposes of the Act even more than the former.
Justice Clarence Thomas filed a dissent, joined by Justice Ruth Bader Ginsburg, arguing that CSX Transportation would not be able to prove that the tax exemption discriminates against railroad carriers. The court reversed and remanded the case for further proceedings to determine whether the taxes in fact discriminate against railroad carriers.

At oral argument [JURIST report], the justices attempted to determine when a tax exemption amounts to "discrimination" within the meaning of the 4-R Act. Counsel for the petitioner argued that the narrow question of whether a tax exemption could ever amount to discrimination does not require a discussion of formulating some basis for determining whether the particular tax exemption is in fact discriminatory.




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Ukraine prosecutors combine criminal cases against former PM Tymoshenko
Zach Zagger on February 22, 2011 10:45 AM ET

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[JURIST] The Ukrainian Prosecutor General's Office (PGO) [official website, in Ukrainian] has combined two separate criminal cases [press release, in Ukrainian] and concluded the pre-trial investigation of opposition leader and former primer minister Yulia Tymoshenko [personal website; JURIST news archive]. Tymoshenko was called in for questioning Monday by the PGO and was presented with the charges. The proceedings lasted about two hours before the PGO concluded the pre-trial investigation. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports] while in office by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up. Tymoshenko says the vans were successful in providing medical services to rural villages. She also criticized the speed [press release, in Ukrainian] at which the charges were processed, claiming they are politically motivated.

Tymoshenko's government was dissolved last March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian]. The current combined case against her is not the first time she has been prosecuted. Last 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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ICTY begins contempt trial over witness identity revelations
Matt Glenn on February 22, 2011 9:01 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] began the trial [press release] of former Serb nationalist politician Vojislav Seselj [case materials; JURIST news archive] Tuesday on charges that he released the names of 11 ICTY witnesses in violation of a confidentiality order. ICTY prosecutors say that Seselj divulged the names [AP report] in a book he wrote and on his website [personal website, in Serbian]. Seselj, a former president of the Serbian Radical Party (SRS) [BBC backgrounder] claims that the witnesses gave him permission to reveal their names and that they had been coerced into testifying against him. Last August, the ICTY ordered an investigation [JURIST report] into whether prosecutors had intimidated witnesses into testifying against Seselj in a war crimes trial. The presiding judge in Seselj's contempt case has agreed to adjourn the trial after the prosecution states its case to give Seselj time to bring witnesses to The Hague.

Last May, the ICTY appeals division upheld a 2009 contempt verdict [JURIST reports] against Seselj for revealing the identities of other witnesses that were supposed to remain confidential. Seselj's war crimes trial resumed in early 2010, after being delayed [JURIST reports] for nearly a year over fears that witnesses were being intimidated. He is charged with 14 counts of crimes against humanity and violations of the laws or customs of war. The ICTY had previously stripped Seselj of his right to defend himself after he failed to appear in court, despite an earlier appeals court ruling that he could represent himself [JURIST reports] provided he did not engage in courtroom behavior that "substantially obstruct[ed] the proper and expeditious proceedings in his case." Seselj is accused of establishing rogue paramilitary units affiliated with the SRS, which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict.




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Egypt chief prosecutor seeks to freeze ex-president's foreign assets
Erin Bock on February 21, 2011 3:13 PM ET

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[JURIST] Egypt's chief prosecutor on Monday requested that Foreign Ministry officials take steps to freeze any foreign assets belonging to former president Hosni Mubarak [Al Jazeera profile] and his family.Prosecutor Abdel Magid made the request [AFP report] even though Mubarak submitted a declaration of wealth indicating that he possessed no foreign assets. Mahmud stated that the freeze would apply to Mubarak, his wife, as well as his two sons and their wives. Switzerland froze assets held by Mubarak and "parties close to him" [statement], shortly after Mubarak announced his resignation on February 11. Swiss authorities reportedly froze "several dozens of millions" of francs [Reuters report] kept by Mubarak and related parties in Swiss banks, although the legitimacy of these funds is still under investigation.

Mubarak stepped down after nearly three weeks of demonstrations [Al Jazeera report] protesting the Egyptian government and calling for his resignation. Mubarak's resignation left state affairs in the hands of the Egyptian Supreme Council of the Armed Forces, which pledged to lift the country's emergency laws [JURIST report] that were in place for nearly 30 years once circumstances in the country improved. The Council also vowed to have a peaceful transition to power and promised not to prosecute "honourable people who refused corruption and demanded for reform." On Thursday, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in various countries across the Middle East and North Africa [BBC backgrounder] currently embroiled in protests. During the three weeks of protests leading up to Mubarak's resignation, nearly 400 people were killed and 5,500 were wounded.




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India president: government to address corruption
Megan McKee on February 21, 2011 3:09 PM ET

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[JURIST] Indian President Smt. Pratibha Devisingh Patil [official website] announced Monday that the government will work to eradicate corruption. In her address to both houses of Parliament [official website] to open the budget session, Patil stated that India will take measures to ratify the UN Convention Against Corruption [text, PDF] and that it will take other legislative and administrative measures necessary to improve transparency. The government has also set up a group of ministers charged with streamlining the judicial system [Indian Express report]. They will particularly work to expedite corruption cases brought against civil servants suspected of corruption and to amend current laws to facilitate bringing claims against public servants. Partial public funding of elections is also being considered as a method to improve transparency.

In 2008, Indian Prime Minister Manmohan Singh [official website] called for the establishment of special courts [JURIST report] to deal only with corruption charges, telling a convention of high-ranking justices and government ministers that, "apart from pendency and delayed justice, corruption is another challenge we face both in government and the judiciary." Singh said addressing these problems would increases both domestic and foreign confidence in the court system. Following the prime minister's remarks, Chief Justice K.G. Balakrishnan [official profile] told reporters that Singh did not mean that the judiciary itself was corrupt, but rather that it has to deal with a large number of cases brought by the Central Bureau of Investigation [official website], which alleged government corruption. Balakrishnan went on to say that allegations of judicial corruption were rare and dealt with swiftly when they did arise.




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Tunisia seeks extradition of ousted president
Ann Riley on February 21, 2011 2:46 PM ET

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[JURIST] The Tunisian Ministry of Foreign Affairs [official website] on Sunday submitted a formal request to Saudi Arabian authorities to extradite ousted former president [press release, in Arabic] Zine Al Abidine Ben Ali [BBC profile, JURIST news archive] following the filing of additional charges. In addition to charges of money laundering [AFP report] and possession of unlicensed weapons [CNN report] against the ousted president, his wife, and other family members, Ben Ali has been charged with committing and inciting voluntary manslaughter and sowing discord among citizens. The Foreign Ministry has also asked Saudi Arabia to provide information on Ben Ali's health following news reports of his deteriorating health and possible death. Last month, Tunisia's Justice Minister Lazhar Karoui Chebbi announced that the country issued an international arrest warrant [JURIST report] for Ben Ali.

Earlier this month, Human Rights Watch (HRW) [advocacy website] called on the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [HRW reports; JURIST report], and the UN reported that at least 219 died as a result of the protests, including 72 killed in prison riots. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST reports] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. Earlier that month, 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. Also, UN Secretary-General Ban Ki-Moon [official website] urged government leaders in Tunisia to initiate dialogue between all sides in an attempt to restore the rule of law [JURIST report]. The Tunisian Constitutional Council declared that the leader of the lower house of parliament, Foued Mebezza, would assume power as interim president [JURIST report] until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has promised will be within six months.




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Federal prosecutors end criminal investigation of Countrywide executive
LaToya Sawyer on February 21, 2011 2:04 PM ET

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[JURIST] Federal prosecutors have dropped a criminal investigation against former Countrywide Financial Corporation [JURIST news archive] executive Angelo Mozilo, concluding that he was not involved in any criminal conduct during his time as director over the company, according to Friday reports. Mozilo is most identified with taking part in the mortgage boom that caused financial devastation to banking institutions and private homeowners. In 2009, the US Securities and Exchange Commission (SEC) [official website] charged [JURIST report] Mozilo, along with several other company officials, with securities fraud arising from misleading investors. The SEC alleged that the officials falsely assured investors about credit risks involved in the company's efforts to build and maintain their market share, and that they knew the company was issuing risky loans and that defaults and delinquencies would arise as a result. Mozilo was also charged with insider trading for selling his stock in the company based on inside information. Although the Mozilo probe has been dropped, future investigations may arise [LAT report] from developments in the civil cases against Mozilo from Countrywide shareholders.

Recently, there have been several settlements resulting from the lawsuits against Countrywide for its role in the mortgage crisis. Earlier this month, the Superior Court of California County of Los Angeles [official website] approved [opinion, PDF] a $6.5 million settlement [JURIST report] between the state of California and two former Countrywide Financial Corporation executives, including Mozilo, accused of predatory lending. In June, Countrywide, 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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UK judge warns proposed bill of rights could further conflict between UK, ECHR
Ashley Hileman on February 21, 2011 1:15 PM ET

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[JURIST] Former UK Lord Chief Justice Lord Woolf warned Monday that a British Bill of Rights, as proposed by various members of the British government, would conflict [BBC audio] with the European Convention on Human Rights [text, PDF], which the UK has incorporated into its law. While the government has not stated an intention to withdraw from the European Convention on Human Rights, Woolf has warned that continued adherence to the convention combined with the creation of a British Bill of Rights will create complications for judges in determining which to follow and further the existing conflict between the UK and the European Court of Human Rights (ECHR) [official website]. The proposal for the British convention arose from recent disagreements [BBC report] with both the ECHR and the UK Supreme Court [official website]. The former caused outrage by ruling [JURIST report] that prisoners should have the right to vote and the latter evoked a similar reaction through its April 2010 ruling [JURIST report] that the country's sex offender registry violates individual rights to privacy. In his answers to questions [text] regarding these issues last week, Prime Minister David Cameron characterized the Supreme Court's ruling as flying "in the face of common sense" and assured those listening that "a commission will be established imminently to look at a British Bill of Rights, because it is about time we ensured that decisions are made in this Parliament rather than in the courts." For now, Cameron intends to follow the minimum requirements of each respective ruling.

Earlier this month, UK think tank Policy Exchange [think tank website] called for the UK to withdraw [JURIST report] from the ECHR in favor of a domestic high court. Senior UK judge Lord Leonard Hoffman wrote the foreword, saying the "Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states." The report, written by former government adviser Dr. Michael Pinto-Duschinsky, explains that the ECHR has gradually grown in power. It calls for the UK to try to negotiate reforms with the court to limit its jurisdiction, and, if unsuccessful, states "the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights in Strasbourg and establishing the Supreme Court in London as the final appellate court for human rights law." The report suggests that, if the UK pulls out, a domestic court would be final arbiter on human rights issues, and there would be no right to appeal to the ECHR.




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India appeals court upholds death sentence for Mumbai gunman
Zach Zagger on February 21, 2011 11:18 AM ET

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[JURIST] The Bombay High Court [official website] on Monday upheld [judgment, PDF] the conviction and death sentence of Pakistani national Mohammad Ajmal Amir Kasab [NDTV profile], the only surviving gunman of the three-day siege of Mumbai [BBC backgrounder; JURIST news archive] that killed 166 in November 2008. The court also upheld the acquittals of two Indian citizens accused as accomplices because of insufficient evidence.The court said in its 1,208-page decision that the only mitigating factor was Kasab's age, 24, but that it was overridden by the grave nature of the crime:
The brutality, perversity and cruelty exhibited by [Kasab] by committing multiple murders of innocent men, women, children, aged persons and policemen without provocation for a motive which has no moral justification makes this case a gravest case of extreme culpability. The conduct of [Kasab] shows that his mental age overrides his physical age. He has never shown any repentance, but has loudly proclaimed that he wants to [set an example] by his conduct.
After the announcement of the judgment, people cheered in the street [LAT report], lighting fireworks and chanting for Kasab's death. Kasab can still appeal to India's highest court, and, if that is unsuccessful, he can petition the government for clemency. Kasab will likely be hanged, but the appeals could delay his execution for years.

Kasab filed his appeal in June after being convicted [JURIST reports] in May for his role in the attack, which was allegedly coordinated by Pakistani militant group Lashkar-e-Taiba (LeT) [CFR backgrounder]. He was sentenced to death after the prosecution sought the death penalty [JURIST reports], citing eight aggravating circumstances. Judge ML Tahiliyani, specially appointed in January 2009 to preside over the trial of the three suspects detained after the attacks, heard closing arguments [JURIST report] in the case last March. In January 2010, Tahiliyani denied [JURIST report] Kasab's request for an international trial after Kasab claimed that he would not receive a fair trial in India. In December 2009, Kasab withdrew his confession [JURIST report], claiming he was tortured and framed by police. Tahiliyani continued the trial [JURIST report] despite Kasab's confession, ruling that it was incomplete but should be entered into the record.




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Libya government promises constitutional reforms following protests
Dwyer Arce on February 21, 2011 10:04 AM ET

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[JURIST] The Libyan government is considering adopting a constitution and allowing greater freedoms, Saif al-Islam, son of Libyan leader Muammar Gaddafi [BBC profile], announced Monday in a televised address [video] following several days of protests. In the address, Saif al-Islam also called for an end to the protests, warning of instability, civil war and thousands of deaths if they are continued. The protests began Tuesday following those that had occurred throughout the Middle East and North Africa [BBC backgrounder], resulting in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protesters have demanded Gaddafi's resignation and government reform since the start of protests in Benghazi, Libya's second city, which was reported to be largely under the control of demonstrators [UKPA report] following the retreat of police and military forces and reported defections by military personnel over the weekend. Also on Monday, protests were reported to have spread into the capital city of Tripoli [Al Jazeera report], as several large tribes have expressed support for the protests and have threatened to cut off oil exports if Gaddafi, who has been in power since a 1969 coup, fails to step down. Following these developments, Libyan Justice Minister Mustafa Mohamed Abud Al Jeleil resigned [Quryna report] Monday, citing the government's violent response to the demonstrations. Al Jeleil is the fourth government official to resign since the start of the protests, following those of the ambassadors to India, China and the Arab League. Human Rights Watch (HRW) [advocacy website] reported Sunday that more than 230 protesters had been killed [press release] since Tuesday, with the military and government supporters using live ammunition and machine guns on protesters, a shutdown of the Internet and the arrest of those who speak to foreign press.

On Thursday, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in Bahrain and elsewhere, referencing recent attempts to quell protests sweeping across the Middle East and North Africa. Ban said that he is "disturbed by all these violent means of trying to disperse demonstrators, the freedom of expression, freedom of access to information, particularly the journalists." In conjunction, UN High Commissioner for Human Rights, Navi Pillay [official profile], on Friday condemned violence by the security forces in Libya, Bahrain and Yemen against anti-government demonstrators as illegal and excessively heavy-handed. Pillay blamed the protests on decades of neglecting legitimate aspirations to realize civic, political, economic, social and cultural rights. Last week, Algerian Foreign Minister Mourad Medelci said the government will end the 19-year-old state of emergency laws [JURIST report] amidst growing protests in Algeria. Earlier this month, Iranian opposition leader Mehdi Karroubi was placed under house arrest [JURIST report] in relation to calls by Karroubi and fellow opposition leader Mir Hossein Mousavi [JURIST news archive] for rallies in support of the recent political reform movements in Tunisia and Egypt.




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DRC colonel sentenced to 20 years imprisonment for mass rapes
Sarah Paulsworth on February 21, 2011 9:50 AM ET

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[JURIST] A military court in the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] on Monday found Lt Col Kibibi Mutware guilty of involvement in mass rapes that took place on New Year's Day and sentenced him to 20 years imprisonment, dismissing him from the military. The court found that Mutware ordered his troops [BBC report] to rape, assault and loot from residents of Fizi. Eight of his troops were also given prison sentences [Reuters report] of between 10 and 20 years and expelled from the army for their involvement in the attack. More than 60 women were raped [Bloomberg report] over a two-day period, and 49 women testified against Mutware and his cohorts. Mutware's conviction is the first of a commanding officer for rape in eastern DRC. All of the men plan to appeal their convictions.

The DRC has been called rape capital of the world [BBC report] by senior UN officials. Members of the UN Security Council [official website] expressed "outrage" [statement] last August over a different mass rape in the DRC, calling for justice for the victims [JURIST report]. UN representatives alleged that Congolese rebel groups Mai Mai and the Democratic Liberation Force of Rwanda (FDLR) [GlobalSecurity backgrounders] raped between 150 and 200 women and children [NYT report] in a small cluster of villages in eastern DRC between July 30 and August 3 of last year. Human rights have long been a major concern in the DRC. In June, national police chief John Numbi was suspended [JURIST report] as part of the ongoing investigation into the murder of human rights activist Floribert Chebeya. In December 2009, HRW urged the UN Organization Mission in DR Congo (MUNOC) [official website] to stop funding military groups [JURIST report] in the country that are committing human rights abuses. In December 2008, Amnesty International reported that rape and sexual warfare have been employed [JURIST report] by both the DRC military and by rebel forces. In November 2008, MUNOC head Alan Doss [appointment release] condemned [JURIST report] the killing of civilians by militias in the country as war crimes. MONUC has been operating in DRC since 1999. The conflict in the DRC has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.




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Iran opposition leader requests open, public trial
Carrie Schimizzi on February 20, 2011 2:51 PM ET

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[JURIST] Iranian opposition leader Mehdi Karroubi [NYT profile; JURIST news archive] called Sunday for his own trial to be set up in a public court. In an open letter to the head of the Supreme Judicial System of Iran [GlobaLex backgrounder], Ayatollah Sadeq Larijani [official website, in Farsi], posted on his website Saham News [website, in Persian], Karroubi asked for a public forum in order to ensure a fair trial [AFP report] in defense of the Iranian people. Karroubi was unable to deliver the letter in person as he has been under house arrest [JURIST report] since earlier this month. Iranian security forces reportedly took control of the area outside of Karroubi's residence and barred all family members, except his wife, from entering. The report indicated that the arrest was related to calls by Karroubi for rallies in support of the recent political reform movements in Tunisia and Egypt [CFR backgrounder].

Last week, Iranian lawmakers called for Karroubi and two other opposition leaders, Mir-Hossein Mousavi [BBC profile; JURIST news archive] and former reformist president Mohammad Khatami [BBC profile] to face trial and death after Monday's clash with security forces. Thousands of Iranians protested last week in solidarity with Egypt's revolt against ousted president Hosni Mubarak [Al Jazeera profile]. Pro-government legislators demanded [AP report] the men be held responsible for the protests, which resulted in one death and numerous injuries. Monday's protests in Iran were the first demonstrations since December 2009, following the disputed presidential elections [JURIST news archive] that gave Mahmoud Ahmadinejad [official website] a second term.




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Utah House passes Arizona-style immigration bill
Carrie Schimizzi on February 20, 2011 1:58 PM ET

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[JURIST] The Utah House of Representatives [official website] on Friday approved an Arizona-style immigration law by a 58-15 majority vote. Sponsored by Representative Stephen Sandstrom (R) [official profile], the controversial bill [HB 70 text, PDF] had been amended several times [Salt Lake Tribune report] before going up for a vote. The proposed law will give state law enforcement officials the authority to investigate the immigration status of those they stop or arrest, but under the approved amendments, only for serious crimes. A controversial provision to the bill, which allowed police officers to inquire about a person's immigration status while being stopped or arrested for a misdemeanor, was changed [HB 70 Amended, PDF] last week. Unlike its Arizona predecessor, the Utah immigration bill does not provide an avenue for private citizens to sue local police who do not enforce the law. The House did not pass a proposed amendment [materials, PDF] that would allow illegal aliens "being held for transportation" to remain in the state "if a legal resident of this state offers to sponsor the alien in compliance with the requirements under federal law." The bill will now head to the state Senate [official website] where uncertainty remains as to whether it will pass and be signed into law.

The issue of illegal immigration [JURIST news archive] has been the subject of legislation and lawsuits across the country, and several states have enacted or proposed legislation [JURIST reports] similar to the controversial Arizona immigration law [JURIST news archive]. The Arizona law, which has been widely criticized as unconstitutional for allegedly legalizing racial profiling, has sparked a nationwide debate on immigration policy, prompting calls for immigration reform [JURIST report] from President Barack Obama [official profile]. In October, a judge for the US District Court in the District of Arizona [official website] denied [order, PDF] motions to dismiss a class action lawsuit [JURIST report] challenging the constitutionality of the Arizona law. Two other lawsuits [JURIST report] challenging the law were filed last year and are still pending.




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Wyoming Senate approves bill banning same-sex marriage recognition
Julia Zebley on February 20, 2011 1:17 PM ET

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[JURIST] The Wyoming Senate [official website] on Friday approved a bill [text, PDF], that would void in Wyoming any same-sex marriages and civil unions [JURIST news archive] performed in other jurisdictions. Although House Bill 74, Validity of Marriage, passed with a vote of 16-14, the Senate amended [text of amendments] the bill to allow couples to use the state court system to resolve marital disputes:
Parties to a domestic or other legal civil union lawfully entered into in another state, commonwealth, territory, district or possession of the United States or a foreign nation, which are not recognized as a marriage under the laws of Wyoming, shall be entitled to access to the courts of the state for the purposes or resolving disputes that arise out of their domestic or other legal civil union.
Due to the amendments, the bill, which was previously approved by the House [JURIST report], must return to House for a new vote, likely to occur next week [Casper Star-Tribune report].

In addition to House Bill 74, the Wyoming legislature is also considering a state constitutional amendment [JURIST report] to ban recognition of same-sex marriage. The bill has been described as a backup [Billings Gazette report] in case the constitutional amendment fails. Wyoming currently does not allow same-sex marriage. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC. Civil unions were recently approved in Illinois, and Hawaii [JURIST reports] has pending legislation to legalize same-sex marriage.




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Italy PM Berlusconi pledges judicial reform while awaiting trial
Julia Zebley on February 20, 2011 12:30 PM ET

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[JURIST] Italian Prime Minister Silvio Berlusconi [official website, in Italian; JURIST news archive] pledged Saturday to reform the country's judicial system, days after it was announced that he will stand trial for charges of underage prostitution [JURIST report]. Calling himself the "most persecuted man in the history of the justice system," in a released audio statement [audio statement and transcript, in Italian] and an unreleased conference call [Reuters report], Berlusconi outlined several improvements he plans to make in Italy, including reshaping the judiciary branch. He cited, in particular, the Italian Constitutional Court [official website, in Italian], which struck down [JURIST report] parts of a law [materials, in Italian] Berlusconi backed that would grant public officials temporary immunity from charges while in office.
As for future agenda, I summon the Council of Ministers to launch ... [a] special session on constitutional reform ... to ensure that Italy may finally have a fair justice and also a justice worthy of a modern country, that without those injustices, those delays and the inefficiencies that have discouraged foreign investors for years even to come to work with us. There are inequities, inefficiencies and delays ... which has increasingly become a political counter [that] overflows from the constitutional principles and that is always less efficient [rather than] just a public service, which, instead everyone would like it to be.
In the conference call, Berlusconi revealed proposals that include, "a two-thirds majority on the 15-member court will be required to repeal a law." Opposition leaders declared this a sign of desperation.

Earlier this week, Berlusconi was the subject of protests [Reuters] by hundreds of thousands of women, calling for his resignation over his recent sex scandal. 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, which would have allowed charges against Berlusconi to lapse. Italian prosecutors launched a tax inquiry [JURIST report] against Berlusconi in October for tax declarations he made in 2003 and 2004 relating to the commercial broadcast company Mediaset [corporate website, in Italian], which Berlusconi founded. The investigation is the fourth time Berlusconi has faced allegations of fraud in relation to his Mediaset company. In addition to the trial for abuse of power and underage prostitution, Berlusconi has three other pending judicial proceedings.




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Federal judge upholds detention of Yemeni Guantanamo inmate
Maureen Cosgrove on February 19, 2011 4:40 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Friday denied [opinion, PDF] a petition for writ of habeas corpus of a Yemeni man currently detained at Guantanamo Bay [JURIST news archive]. Judge Ricardo Urbina held that the government proved by a preponderance of the evidence that Mashour Abdullah Muqbel Alsabri was a part of and provided material support to the Taliban, al Qaeda [JURIST news archive] or associated enemy forces. The court found that the petitioner traveled to Afghanistan to fight with the Taliban or al Qaeda, stayed at Taliban or al Qaeda guesthouses, received military training at an al Qaeda facility, traveled to the battle lines and was captured during armed conflict. Furthermore, the court found no evidence that the petitioner dissociated with these enemy forces at any point prior to his capture. These findings taken together, the court said, support the government's contention that the petitioner was lawfully detained. The petitioner was arrested in 2002 and filed his habeas corpus petition in October 2006.

Federal courts have struggled with habeas corpus rights for Guantanamo detainees. In September, Kuwaiti Guantanamo detainee Fawzi Khalid Abdullah Fahad al Odah [JURIST news archive] petitioned [text, PDF; JURIST report] the US Supreme Court [official website; JURIST news archive] to reverse a federal appeals court decision that denied him habeas corpus relief. The US Court of Appeals for the District of Columbia Circuit [official website] denied [text, PDF; JURIST report] habeas corpus relief to al Odah in July. The court affirmed the district court's ruling [opinion, PDF; JURIST report] that there was sufficient evidence against al Odah for him to be considered "part of" al Qaeda and Taliban forces. In August, the US District Court for the District of Columbia released a partially redacted opinion [text, PDF] ordering the release [JURIST report] of Yemeni Guantanamo Bay detainee Adnan Farhan Abdul Latif [NYT profile] for lack of evidence.




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Pakistan court issues second warrant for ex-president Musharraf
Maureen Cosgrove on February 19, 2011 3:01 PM ET

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[JURIST] A Pakistani anti-terrorism court on Saturday issued a second arrest warrant for former military president Pervez Musharraf [BBC profile; JURIST news archive] for not appearing in court for charges related to the 2007 assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. Authorities were unable to serve an arrest warrant issued last Saturday [JURIST report] because Musharraf is currently living in self-imposed exile in London [CNN report]. Prosecutor of the Federal Investigation Agency of Pakistan (FIA) [official website] Chaudhry Zulfiqar Ali said the latest court order allows authorities to serve the new warrant at Musharraf's residences both in Pakistan and abroad. Musharraf's defense counsel, Muhammad Ali Saif [Pakistan Herald profile], said that the charges were politically motivated and unwarranted. The court adjourned the hearing until March 5 to ensure Musharraf is present.

Earlier this month, the court determined Musharraf had not cooperated during the investigation of Bhutto's death, and investigators have alleged that Musharraf did not provide adequate security [DAWN report] for Bhutto when she was assassinated during a campaign rally in Pakistan in 2007. According to an interim criminal charge sheet issued earlier this month [JURIST report] by the FIA, Musharraf appointed and allegedly gave orders to the police officers accused of failing to protect Bhutto on the day she was assassinated. Specifically, the prosecution document alleges that Musharraf ordered the officers to remove a security detail for Bhutto prior to her departure and that he later ordered the same officers to hose down the scene of the assassination. The January Salman Taseer assassination [JURIST report] was the most high-profile assassination since that of Bhutto in 2007 [JURIST report] and again involved issues of security. The Pakistani government and police forces have been criticized for their part in Bhutto's assassination. In April 2010, an independent UN commission formed to investigate the assassination issued a report holding the Pakistani government and police forces responsible [JURIST report] for failing to provide adequate security. The report also accused the government of failing to launch a proper investigation into the assassination.




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Kenya parliament speaker rules presidential nominations unconstitutional
Dwyer Arce on February 19, 2011 12:25 PM ET

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[JURIST] Kenneth Marende, Speaker of the Kenyan National Assembly [official website], ruled [text] Thursday that four nominations made by President Mwai Kibaki [official profile] had violated the requirement of consultation with the prime minister under the new constitution [text, PDF; JURIST news archive]. In the ruling, Marende found that Kibaki's nominees to the positions of chief justice, attorney general, director of public prosecutions and controller of budget had violated Article 29(2) of the constitution, which states: "when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly." Prime Minister Raila Odinga [official website] has disputed the nominations [VOA report], which were made while he was in Ethiopia. Odinga had asked Kibaki to wait for his return to Kenya before making the nominations. After finding that he could rule on the issue, Marende held:
I find and rule that the constitutional requirements of ... consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister. Such is not the nomination contemplated by the National Accord and Reconciliation Act, which is part of the Constitution. It is unconstitutional and the unconstitutionality cannot be cured by any act of this House or of its Committees nor by a vote on a Motion in the House. Further, and I so find, no Motion on such a nomination, whatever its terms and whatever the contents of the Report upon which the Motion is based, is admissible and I therefore hereby so order.
Following the ruling, Kibaki argued that Marende's ruling violated the separation of powers [KBC report], and that the issue should have been left for the courts to decide. Kibaki also insisted that his nominations were made pursuant to the constitution.

Last week, the High Court of Nairobi [official website] ruled that the nominations were unconstitutional because they violated promises of gender equality [JURIST report]. Justice Daniel Musinga found that Kibaki's appointments violated Article 27(3) of the constitution, which states, "[w]omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres." 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 [JURIST report], which took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence following the 2007 presidential election [JURIST news archive] that resulted in Kenya's current power sharing agreement between Kibaki and Odinga. The government is now expected to start implementing the new constitution, which could take as long as five years.




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US military tribunal sentences Guantanamo prisoner to 14 years
Megan McKee on February 19, 2011 10:02 AM ET

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[JURIST] A US military tribunal on Friday sentenced Sudanese Guantanamo Bay [JURIST news archive] detainee Noor Uthman Mohammed [DOD materials] to 14 years in prison following a plea agreement [JURIST report] in which he admitted to helping al Qaeda and providing material support to terrorism. Mohammed admitted earlier this week to meetings with al Qaeda and acting as a weapons instructor and manager at the Khaden military camp in Afghanistan, where hijackers and other members of al Qaeda trained prior to the 9/11 attacks. Mohammed was charged [JURIST report] in May 2008 and has been detained at Guantanamo since his capture in Pakistan in 2002. As part of his plea agreement, Mohammed promised to cooperate with US investigators [AFP report] in ongoing investigations. If he does so, he will likely be released in advance of the 14 years to which he was sentenced.

Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] used the death of a Guantanamo detainee to highlight what it claims are problems [JURIST report] with the detention system currently used by the US for dealing with suspected terrorists. The detainee, Awal Gul, had been at the Guantanamo Bay detention center since October 2002, suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF]. Gul died of an apparent heart attack after he had completed some aerobic exercises. The CCR believes that the circumstances surrounding Gul's death illustrate the inherent problem with the detention center and the policy the US follows in detaining and indefinitely holding suspected terrorists, claiming that the facility has become a purgatory, where people are held indefinitely. The issue of what to do with remaining detainees in US custody continues to be a significant issue. In January, Human Rights Watch criticized President Barack Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign.




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Jury reaches mixed verdict over Pennsylvania juvenile sentencing scandal
Megan McKee on February 19, 2011 9:38 AM ET

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[JURIST] A jury in the US District Court for the Middle District of Pennsylvania [official website] reached a split decision on Friday in the corruption trial of former Pennsylvania judge Mark Ciavarella, convicting him of 12 counts, including racketeering, money laundering and conspiracy, and acquitting him of 27 counts, including extortion. Ciavarella, a former judge in Pennsylvania's Luzerne County Court of Common Pleas [official website], was implicated in a juvenile sentencing scandal [JURIST news archive] and accused of receiving kickbacks for sentencing teenagers to two private juvenile detention facilities in which he had a financial interest. Ciavarella was charged with 39 counts of honest services fraud, racketeering, money laundering, wire fraud, bribery, extortion and tax evasion. He will remain free pending sentencing, and he is expected to serve [Scranton Times-Tribune report] between 13 to 15 years.

The trial began [JURIST report] earlier this month. In July, Judge Edwin Kosik accepted [JURIST report] a plea agreement [text, PDF] with former Pennsylvania judge Michael Conahan for his involvement in the juvenile sentencing scandal. Conahan now faces a 20-year prison sentence, a fine of up to $250,000 and disbarment. Kosik had previously rejected [JURIST report] joint plea agreements [text, PDF] from Conahan and Ciavarella, finding that plea bargaining to honest services fraud and tax evasion charges demonstrated that the men did not accept responsibility and that the disbarment and 87-month prison sentences were too lenient [JURIST op-ed]. Conahan and Ciavarella were indicted in September 2009, following a withdrawal of the guilty pleas they entered [JURIST reports] in February 2009.




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UN SG calls for an end to violence against Middle East protesters
John Paul Putney on February 18, 2011 3:39 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] on Thursday called for an end to violence against protesters [statement text; video] in Bahrain, referencing recent attempts to quell protests sweeping across the Middle East and North Africa [BBC backgrounder]. Ban said that he is "disturbed by all these violent means of trying to disperse demonstrators, the freedom of expression, freedom of access to information, particularly the journalists." Ban went on to urge restraint:
Here as elsewhere, violence should not be used against peaceful demonstrators and against journalists. It must stop. Those responsible must be brought to justice. Above all we have insisted on respect for the rights of peaceful protest and assembly, freedom of the press and access to information. There should be no violence from any quarter. I urge all parties to exercise restraint. The situation calls for bold reforms, not repression.
In conjunction, UN High Commissioner for Human Rights, Navi Pillay [official profile], on Friday condemned violence [press release] by security forces in Libya, Bahrain and Yemen against anti-government demonstrators as illegal and excessively heavy-handed [WP report]. Pillay blamed the protests on decades of neglecting legitimate aspirations to realize civic, political, economic, social and cultural rights [Reuters report]. Pillay also acknowledged that journalists, lawyers and activists seem to have been targeted for attack [DPA report]. Reports out of Bharain have indicated that security forces opened fire on crowds of protests [BBC report] gathered in the capital Manama for the funerals of demonstrators killed earlier this week.

Protests have swept across the Middle East and North Africa since protesters in Tunisia ousted President Zine al-Abidine Ben Ali [JURIST report] last month. On Monday, Algerian Foreign Minister Mourad Medelci said the government will end the 19-year-old state of emergency laws [JURIST report] amidst growing protests in Algeria. Earlier this month, President Hosni Mubarak [Al Jazeera profile] announced his resignation [JURIST report] amid unrelenting protests across Egypt. Also earlier this month, Iranian opposition leader Mehdi Karroubi [JURIST news archive] was placed under house arrest [JURIST report] in relation to calls by Karroubi and fellow opposition leader Mir Hossein Mousavi [JURIST news archive] for rallies in support of the recent political reform movements in Tunisia and Egypt.




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Turkish authorities jail journalists over alleged coup plot ties
Drew Singer on February 18, 2011 1:17 PM ET

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[JURIST] Three Turkish journalists allegedly involved with aiding the Ergenekon coup plot [BBC backgrounder; JURIST news archive] were jailed Friday amid foreign concerns for the treatment of journalists within the country. Members of the Ergenekon plot allegedly planned to assassinate prominent members of Turkey's Christian and Jewish minority groups, blame Islamic terrorists for the deaths and use this to delegitimize the ruling Justice and Development Party (AKP) [party website]. Soner Yalcin, the owner of Oda TV [media website, in Turkish], an online news website that has been critical of the Turkish government, and two of his colleagues were formally arrested [AP report] following several days of interrogations. The three were detained during a police raid [Bloomberg report] that followed an eight-month investigation by authorities. US officials have voiced concerns [statement] over the treatment of journalists in Turkey, while Turkish officials have warned other countries not to become involved in their domestic matters.

In June, a Turkish criminal court began the trial [JURIST report] of 33 retired and active naval officers accused of attempting to overthrow the government and establish military rule as part of the Ergenekon plot. The Turkish government indicted the 33 defendants [JURIST report] in March on charges of attempting to overthrow the government and establish military rule. Also in March, Turkish police detained 20 people in connection with the plot, and Turkish prosecutors charged [JURIST reports] an army general and a state prosecutor with belonging to Ergenekon and plotting to overthrow the AKP. The Ergenekon investigation has been criticized as an attempt by the AKP to silence the opposition and impose Islamic principles [JURIST report] on secular Turkey. Trials against the Ergenekon group started [JURIST report] two years ago and nearly 200 people have been charged in connection with it.




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Federal judge sentences JFK bomb plot conspirator to life in prison
LaToya Sawyer on February 18, 2011 12:37 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of New York [official website] on Thursday sentenced Russell Defreitas, a Guyanese airport cargo handler, to life in prison [FBI press release] for conspiring to commit terrorist attacks on John F International Kennedy Airport (JFK) [official website]. Defreitas and co-conspirator Abdul Kadir, originally arrested [JURIST report] in 2007, were convicted by a federal jury in July on charges of conspiracy to attack a public transportation system, conspiracy to destroy a building by fire or explosive, conspiracy to attack aircraft and aircraft materials, conspiracy to destroy international airport facilities and conspiracy to attack a mass transportation facility. Kadir was sentenced to life in prison [JURIST report] in December for his role in the plot. A third defendant, Abdel Nur, pleaded guilty in June for supporting the plot and was sentenced to 15 years in prison. A fourth co-conspirator, Kareem Ibrahim, awaits trial on the same charges as Defreitas and Kadir. US Attorney Loretta Lynch, said, "Russell Defreitas plotted to commit a terrorist attack that he hoped would rival 9/11. But law enforcement detected and thwarted the plot, saving lives. Now, our courts have dispensed justice by handing out the life sentence that Defreitas richly deserves."

According to the original complaint [text, PDF], the plot was intended to "cause greater destruction than in the Sept. 11 attacks," according to one of the suspects. The plot could have destroyed parts of New York's borough of Queens [official website], where an underground fuel pipeline serving the airport runs. Defreitas, designer of the plot, sought to use his experience as a cargo handler for the airport to attack JFK's fuel tanks and pipelines. He recruited Kadir, Nur and Ibrahim during several trips he made to Guyana and Trinidad. Authorities tracked the plot for more than a year before making the arrests. Defreitas had said he formed the plot more than a decade ago, saying he chose the airport because its destruction would put "the whole country in mourning."




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China court upholds US geologist's espionage conviction
Brian Jackson on February 18, 2011 11:33 AM ET

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[JURIST] A Chinese appeals court on Friday upheld the conviction of US geologist Xue Feng [advocacy website], sentenced to eight years in prison for committing industrial espionage. The court's decision was immediately met with expressions of disappointment [official statement] by US Ambassador to China John Huntsman [official profile], who said that the US would ask China to consider an "immediate humanitarian parole." The proceedings in the case were brief [BBC report], and that brevity combined with the resulting decision raised old concerns about the lack of independence in the Chinese judiciary [AP report]. In addition to Xue, three Chinese nationals were also convicted for violating China's controversial state secrets law [JURIST news archive].

Xue originally appealed his conviction in July, arguing that the information he is accused of taking was widely available for sale on the Internet for seceral years. Xue had been convicted earlier that month [JURIST report]. Xue has asserted that he has been tortured while in custody, a claim that comports with a recent report by Human Rights Watch, which has accused China of failing to meet goals [JURIST report] the country had set for advancing human rights. In September, the Chinese government claimed to have increased human rights [JURIST report] by heightening Internet freedoms and improving civil and political rights.




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UN rights chief urges Russia to protect rule of law
Andrea Bottorff on February 18, 2011 11:18 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged Russian officials to reform institutions to protect the rule of law [news release] in Russia. Pillay claimed that the Russian people do not trust government institutions, in part because of the ongoing harassment of journalists and human rights activists. She said that the "rule of law, including accountability and protection of rights for all citizens and non-citizens on Russian territory, is an essential prerequisite for true democracy, peace and development." Pillay met with Russian President Dmitry Medvedev [official profile; JURIST news archive] to discuss possible reforms and suggested that the success of the new Law on Police [text, in Russian], which takes effect March 1 and restricts the level of force [RIA Novosti report] that police may use, will be a preview of future revisions to Russian law. During her visit, Pillay also met with human rights activists at a community center in Moscow and talked about the growing role of public organizations [Voice of Russia report] in the country.

Russia faces ongoing criticism from the international community regarding its human rights record. In July, Medvedev signed into law [JURIST report] a bill that granted controversial new powers to the Russian Federal Security Service (FSB), the Russian Federation's successor to the former USSR's KGB [GlobalSecurity backgrounders]. The bill, which the Russian parliament approved [JURIST report] earlier that month, gives the FSB authority to question citizens about actions that may create the conditions for a crime and issue warnings [DW report] not to engage in unapproved acts. However, Russian courts have recently taken action against extremist groups in the country. A Russian court in July made public a ruling banning access to five websites [JURIST report], including the video-sharing network Youtube [website], for what it called extremist elements. Also in July, a Russian court sentenced 14 neo-Nazis [JURIST news archive], including a group leader and several teenagers, to jail terms for committing hate crimes against ethnic minorities [JURIST report].




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DOJ asks federal judge to clarify health care ruling
Brian Jackson on February 18, 2011 10:28 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday asked federal judge Roger Vinson to clarify his ruling [motion, PDF] to require states to enact the Patient Protection and Affordable Care Act [text; JURIST news archive] during the pendency of the government's appeal. In the motion, the government focused on the substantial uncertainty that would be faced by people who currently enjoy benefits from portions of the law that went into effect immediately. The motion also focused on the fact that the portion of the law ruled unconstitutional, the minimum coverage mandate, is not scheduled to go into effect until 2014, meaning there would be no prejudice to states if they would be required to enact the earlier-scheduled provisions. The government additionally noted the significant number of states, including those that are parties to this suit, have applied for funding under enacted portions of the law. The government concluded by focusing on Vinson's own words from the grant of summary judgment [opinion, PDF]:
The Court gave no indication, however, that it intended or anticipated the specific potential disruptions of ongoing programs and operations (discussed above) and the questions that would arise about which parties are bound by the Court's order while the appellate courts resolve constitutional challenges to the Affordable Care Act. And despite its clear recognition of the complexity of the [law] and the difficulty in determining how the reasoning of its declaratory judgment would affect existing programs, this Court expressly declined to grant "injunctive relief enjoining implementation of the Act."
The DOJ also expressed its intent to appeal Vinson's ruling to the US Court of Appeals for the Eleventh Circuit [official website].

Vinson granted [JURIST report] the states' motion for summary judgment in January, finding that the minimum coverage mandate exceeded Congress' authority under the commerce clause. The health care reform law is the subject of numerous legal challenges and inconsistent rulings 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 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 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




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US Defense Secretary says Guantanamo closing unlikely
Andrea Bottorff on February 18, 2011 9:48 AM ET

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[JURIST] US Defense Secretary Robert Gates [official profile] said at a congressional hearing Thursday that Guantanamo Bay [JURIST news archive] is unlikely to be closed [video] because of security concerns. Responding to a question from the Senate Armed Forces Committee [official website], Gates said that the odds of closing the detention facility are "very, very low," particularly because of congressional opposition, the difficulty in predicting which detainees are likely to return to terrorist activities and restrictions on detainees being brought to the US for trial under the Ike Skelton National Defense Authorization Act of 2011 [HR 6523]. Gates made his comments one day after CIA Director Leon Panetta [official profile] told Congress that, if captured, Osama bin Laden [JURIST news archive] and his second-in-command would probably be sent to Guantanamo Bay [WP report]. At his first press briefing on Wednesday, Press Secretary Jay Carney [WP profile] said that President Barack Obama still aims to close Guantanamo [briefing text], despite Panetta's comments.

The Obama administration continues its push to close the Guantanamo Bay facility, despite running into several hurdles in closing the prison, including the suspension of detainee transfers to Yemen and a new law barring the transfer of Guantanamo detainees [JURIST reports] to the US for trial. Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] used the death of a Guantanamo detainee to highlight what it claims are problems with the detention system [JURIST report] currently used by the US for dealing with suspected terrorists. In January, Human Rights Watch criticized Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign. In an effort to reduce the population at the facility, the US has been transferring detainees to other countries. There are currently 178 detainees awaiting transfer from Guantanamo.




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Federal judge dismisses Padilla torture suit
Carrie Schimizzi on February 18, 2011 9:29 AM ET

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[JURIST] A judge for the US District Court for the District of South Carolina [official website] on Thursday dismissed [order, PDF] a lawsuit filed by convicted terrorist Jose Padilla [JURIST news archive], ruling that he has no right to sue for constitutional violations. Padilla alleged he was isolated and tortured while being detained on a Navy military brig in Charleston, South Carolina. US District Judge Richard Gerge ruled that the defendants, including US Defense Secretary Robert Gates [official profile] and former defense secretary Donald Rumsfeld [JURIST news archive], are immune from suit, finding Padilla "failed to allege facts" sufficient to establish standing to seek declaratory and injunctive relief and that allowing the trial to proceed further would cause a spectacle:
A trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America's present and former leaders to a federal courthouse to answer his charges. This massive litigation would have been authorized not by a Congressionally established statutory cause of action, but by a court implying an action from the face of the American Constitution.
The American Civil Liberties Union (ACLU) [advocacy website] criticized the ruling [press release], calling it "troubling" and a "blow to the rule of law" and demanding that the right to be free from torture be protected.

A federal judge in San Francisco reached the opposite conclusion in June 2009 when he allowed a lawsuit filed [JURIST reports] by Padilla to move forward against University of California Berkeley law professor John Yoo [academic profile; JURIST news archive], the author of controversial US government memos arguing that detained enemy combatants could be denied Geneva Conventions protections against torture. The suit alleges that Yoo's memos, written while he was a senior lawyer in the US Justice Department, helped set the Bush administration's policy that terrorism detainees are not protected by the Geneva Conventions. Padilla was convicted and sentenced to 17 years in prison [JURIST report], along with Adham Amin Hassoun and Kifadh Wael Jayyousi, on charges of conspiracy to commit illegal violent acts outside the US, conspiracy to provide material support to terrorists and providing material support to terrorists. Padilla, a US citizen, was arrested in 2002 at Chicago's O'Hare International Airport and subsequently detained as an "enemy combatant" [JURIST news archive].




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Financier Stanford sues federal agents over civil rights violations
Carrie Schimizzi on February 18, 2011 8:28 AM ET

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[JURIST] former financier Allen Stanford [BBC profile; JURIST news archive], accused of defrauding investors [indictment, PDF; JURIST report] out of $7 billion in a Ponzi scheme, filed a lawsuit Wednesday accusing federal agents of violating his constitutional rights. The suit, filed in the US District Court for the Southern District of Texas [official website], names 12 defendants, including members of the FBI, the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) [official websites]. Stanford alleges that the defendants used "abusive law-enforcement methods" to pursue a frivolous civil suit [complaint, PDF; JURIST report] against him in order to gather evidence for his criminal prosecution. He also alleges that federal agents prevented him from mounting a proper defense by freezing his assets and then using $51 million of his own assets to fund the civil suit against him. Stanford is seeking [Bloomberg report] $7.2 billion in damages.

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. He 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]. In January, a federal judge declared Stanford incompetent to stand trial [JURIST report] in connection with a $7 billion fraud scheme. Judge David Hittner of the US District Court for the Southern District of Texas, who postponed the trial [JURIST report] earlier in the 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. A new trial date has yet to be scheduled, though Hittner advised lawyers for both sides to prepare themselves to proceed.




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House passes short-term Patriot Act extension
Daniel Makosky on February 18, 2011 7:00 AM ET

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[JURIST] The US House of Representatives [official website] on Thursday voted 279-143 [roll call vote] to extend three surveillance provisions of the USA Patriot Act [text; JURIST news archive] through May 27. The measures were set to expire on February 28. The provisions extended include roving wiretaps, "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The brief extension has been viewed as a delay tactic to allow Congress to continue debate and hold hearings over the controversial counter-terrorism law. The American Civil Liberties Union [advocacy website] issued a statement [press release] critical of the House's decision, but urged Congress to use the additional time wisely:
It is regrettable that this extension means living with a bad law for three more months, but the silver lining is an opportunity for Congress to focus fully on making necessary reforms to the Patriot Act. The intrusive and extensive power that this law grants our government has very real and serious effects on Americans' lives, and has been in place for far too long. Congress should use the next three months for the kind of vigorous debate Americans' privacy deserves.
The bill will now be sent to President Barack Obama for his signature.

The US Senate [official website] passed [JURIST report] the bill on Tuesday by an 86-12 vote. Earlier in the week, a simple majority of the House approved a similar bill that would have extended the three provisions until December after it had failed [JURIST reports] the prior week under a special rule that required a two-thirds majority. Earlier this month, the Obama administration released a statement of administration policy [text, PDF] vying for a three-year renewal of the provisions, but expressed support for the bill passed Monday. The provisions were extended in February 2010 after the Obama administration asked the Senate Judiciary Committee to extend [JURIST reports] the Patriot Act.




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UN Security Council weighs Kosovo organ trafficking investigation
Daniel Makosky on February 17, 2011 5:06 PM ET

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[JURIST] UN Special Representative to Kosovo Lamberto Zannier on Wednesday requested [press release] that the UN Security Council [official website] open an independent investigation into alleged incidents of organ trafficking [JURIST news archive], inhuman treatment and other crimes by the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder] during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. The request follows shortly after the Council of Europe (COE) [official website] called for a similar inquiry [JURIST report] last month, and stems from a report [text; JURIST report] authored by COE member Dick Marty [BBC profile] indicating that Kosovar Prime Minister Hasham Thaci [official profile] served as the "boss" of an illegal criminal enterprise that trafficked human organs and drugs during the war. US, British and German ambassadors to the UN expressed reservations [Reuters report] about establishing an ad hoc investigatory mechanism, as well as their support for the European Union Rule of Law Mission in Kosovo (EULEX) in conducting the inquiry. Serbian Foreign Minister Vuk Jeremic, however, argued that EULEX is inadequately equipped to do so, as the allegations include activities throughout Europe and in Asia and Africa.

The COE report alleges that Thaci was the leader of the KLA Drenica Group, a criminal network that controlled the heroin trade and the black market trafficking of kidneys of executed Serbian and Albanian war prisoners. News of the report's accusations prompted the government to respond [press release], denying the allegations and calling them an attempt to harm Thaci's reputation following his party's victory in the nation's parliamentary elections last year. Claims of Kosovo's involvement in human organ trafficking originated in 2008 when former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Carla Del Ponte [BBC profile; JURIST news archive] alleged in a book [JURIST report] about her time at the tribunal that roughly 300 Serbian and other non-Albanian prisoners were victims of organ trafficking during the war. That year, Serbian prosecutors condemned Albania's refusal to initiate [JURIST report] an investigation into allegations of organ trafficking in Kosovo. Albanian Prosecutor General Ina Rama refused to cooperate with Serbian war crimes prosecutor Vladimir Vukcevic [official website] and said that her country would only pursue the allegations if the ICTY decided to reopen its investigation.




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Federal judge denies immunity to former Somalia PM
Daniel Richey on February 17, 2011 1:39 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] ruled Tuesday that former Somali prime minister and defense minister Mohamed Ali Samantar is not entitled to legal immunity from civil lawsuits. Samantar, who has lived in the greater Washington, DC, area for more than 15 years, was sued in 2004 by two Somali men who alleged he spearheaded a campaign of ethnic repression against the northern Somali Isaaq clan during his tenure in office. Last June, the US Supreme Court [official website; JURIST news archive] unanimously ruled [opinion, PDF; JURIST report] in Samantar v. Yousef [Cornell LII backgrounder; JURIST report] that the Foreign Sovereign Immunities Act of 1976 (FSIA) [28 USC §§ 1330, 1602 et seq. text] does not provide foreign officials immunity from civil lawsuits In affirming the decision [opinion, PDF] of the US Court of Appeals for the Fourth Circuit [official website], the Supreme Court held that the law was intended only to codify existing international and common law regarding suits against foreign states, not individual members of foreign governments. The court remanded the case back to the Eastern District of Virginia, instructing the lower court to resolve questions of possible immunity under common law and other defenses.

Respondents are seeking damages from Samantar under the Torture Victim Protection Act of 1991 [28 USC § 1350 text]. Samantar was minister of defense and later prime minister of Somalia from 1980 to 1990. Respondents claim that Samantar authorized torture and the extrajudicial killing of them and members of their family. The Isaaq clan, of which the respondents are members, was subjected to systematic persecution during Samantar's time in office before the collapse of the Somali government in 1991 [DOS backgrounder]. Samantar fled Somalia before the collapse of the government and now resides in Virginia.




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Rights group alleges new evidence of detainee abuse by Egypt military
Julia Zebley on February 17, 2011 1:07 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday released a report [text] asserting new evidence that the the Supreme Military Council of Egypt has been torturing protester-detainees. Through various detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." In addition, protesters contend that they were told to confess that they were trained by the Israeli or Iranian governments. AI's director for the Middle East and North Africa Malcolm Smart stated, "The Egyptian military authorities have committed publicly to creating a climate of freedom and democracy after so many years of state repression. Now they must match their words with direct and immediate action." Last week, Human Rights Watch (HRW) published similar concerns [JURIST report], specifically about the detention of journalists, human rights activists, and protesters. UN High Commissioner for Human Rights Navi Pillay [official profile] has also called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [JURIST report] who have been arrested and suggested that violence against protesters [JURIST report] has been planned. The AI report demands immediate disclosure of the names and whereabouts of all detainees, and for either official charges to be drawn against them, or their prompt release.

Earlier this week the Supreme Council appointed a panel of judges [JURIST report] to amend Egypt's constitution [text] prior to public referendum. This decision was part of the transition plan put in place by ousted president Hosni Mubarak [Al Jazeera profile] before leaving office earlier this month. Last week the military pledged to lift the emergency laws [JURIST report] that have been in place since Mubarak assumed power. Prior to Mubarak's resignation, Egypt's government had reached out [JURIST report] to various opposition leaders in the wake of demonstrations that swept the country. Among those in the opposition that have been approached are the Muslim Brotherhood, the oldest and largest Islamic political group in the world. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].




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California Supreme Court agrees to rule on Prop 8 standing issue
Daniel Richey on February 17, 2011 12:43 PM ET

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[JURIST] The Supreme Court of California [official website] announced Wednesday that it will decide a critical procedural issue [release, PDF] to determine whether a pending federal appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, can continue. In January, the US Court of Appeals for the Ninth Circuit [official website] asked [order, PDF; JURIST report] the Supreme Court to weigh in on whether supporters of Proposition 8 have standing to defend the measure when state officials have refused to do so. The issue requires the court to interpret Article II, Section 8 of the California Constitution [text, PDF] to determine:
Whether ... 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 the August invalidation [JURIST report] of Proposition 8 by the US District Court for the Northern District of California [official website] 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.

When Judge Vaughn Walker of the Northern District of California struck down Proposition 8, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. In January, the Ninth Circuit also 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 December. 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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Hawaii legislature passes same-sex civil unions bill
Sarah Paulsworth on February 17, 2011 9:52 AM ET

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[JURIST] Hawaii's Senate [official website] voted 18-5 [bill history] on Wednesday to give final approval to a bill [SB232, text] that will allow civil unions [JURIST news archive] for same-sex couples. Governor Neil Abercrombie (D) [official profile] must now sign the bill into law within 10 days, and the law could come into effect [CNN report] in January 2012. In a statement [text], Abercrombie said the bill "represents equal rights for all the people of Hawaii," adding "I have always believed that civil unions respect our diversity, protect people's privacy, and reinforce our core values of equality and aloha." If signed, the bill will not only recognize civil unions, but will also provide partners lawfully entering into them with "all the same rights, benefits, protections, and responsibilities under law" as are granted to individuals entering into marriage. Hawaii's House of Representatives approved the same bill [JURIST report] earlier this week. A similar bill was vetoed [JURIST report] in July by former governor Linda Lingle (R), who felt that, because it was an issue of "such significant societal importance," it was better suited for a vote in a public referendum. Hawaii would be the seventh state to offer essentially the same benefits and protections afforded to marriages to civil unions.

Earlier this month, Illinois Governor Pat Quinn (D) signed a bill [JURIST report] legalizing same-sex civil unions in the state. The "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." Additionally, it would allow religious institutions within the state to choose whether to observe or officiate the union. Opponents fear that this bill will move Illinois closer to legalizing same-sex marriage [JURIST news archive] and threaten the sanctity of marriage. The new law is set to take effect on June 1. In contrast, last month the Wyoming Senate voted 20-10 in favor of a constitutional amendment [JURIST report] that would prevent the state from recognizing same-sex marriages from any jurisdiction. The decision, which was split down party lines, will 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 (R) and then appear as a referendum item on the 2012 ballot. The following day, the House Judiciary Committee also voted 5-4 [Star-Tribune report] to defeat House Bill 150, which would have recognized civil unions in the state.




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ICTY suspends Karadzic trial for 6 weeks
Ann Riley on February 17, 2011 8:55 AM ET

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[JURIST] The trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday ordered the suspension [decision, PDF] of the trial of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] for six weeks beginning after witness testimonies already scheduled for March. The postponement allows Karadzic to review 32,000 pages and 200 hours of video material that the prosecution sent to him in January. In requesting the suspension, Karadzic alleged that he was prejudiced when he did not have all of the Rule 68 [text, PDF] exculpatory material in the possession of the Prosecution before he started his cross-examination of witnesses. The trial chamber orally granted the motion last week and wrote in its decision:
The suggestion by the Prosecution that 32,000 pages of documents and 200 hours of video ... can be disclosed en masse to the Accused on a single day, with an expectation that he should be able to continuously review and incorporate this volume of material, if necessary, into the conduct of his defence is untenable. ... The Chamber is not satisfied that continuing with the trial proceedings, and allowing the Accused to later recall certain witnesses for further cross-examination following his review of the Disclosed Material, if necessary, is sufficient, in this instance, to ensure his fair trial rights. Moreover, it will not be, in practical terms, conducive to the smooth conduct of the trial. In reaching this conclusion the Chamber also notes that the pattern of disclosure violations in this case has continued and is mindful of the impact which this has had on the smooth and orderly conduct of the trial. ... The Chamber reiterates its deep concern about the volume of potentially exculpatory material which the Prosecution continues to disclose to the Accused, and the impact which this has had on the Accused's preparations and the smooth conduct of this trial.
Karadzic faces 11 war crimes charges [indictment, PDF], including counts of genocide and murder, for alleged crimes he committed during the 1992-1995 war in Bosnia and Herzegovina. Karadzic is defending himself in court and has denied all of the charges against him.

Karadzic's trial was previously suspended [JURIST report] in November for a month to allow him to read 14,000 pages of evidence the prosecution sent to him in October. The court's decision to delay the trial was partially because of the prosecution's repeated violations of its obligation to disclose evidence to the accused. In September, the trial resumed [JURIST report] as Karadzic defended himself before the ICTY after repeated attempts to delay proceedings. The trial previously resumed in April [JURIST report], after the ICTY denied [judgment PDF, JURIST report] Karadzic's attempt [motion, PDF] to delay court proceedings, in which he argued a violation of his right to a fair hearing due to the court's rejection of evidentiary challenges. In March, Karadzic lost another motion to postpone his war crimes trial for charges committed during the Bosnia conflict. Following repeated delays in the proceedings, the ICTY judges warned in September that the trial might continue until 2014 [JURIST report], which is two years longer than expected.




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Tennessee judge finds new lethal injection procedures constitutional
Ann Riley on February 17, 2011 7:28 AM ET

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[JURIST] A Nashville judge ended a four-month moratorium on executions Wednesday, declaring Tennessee's modified method of lethal injection [JURIST news archive] constitutional. In November, Davidson County Chancellor Claudia Bonnyman [official profile] ruled that the state's method of lethal injection violated [The Tennessean report] the Eighth Amendment [text] after lawyers for death row inmate Stephen Michael West [execution advisory] revealed evidence to the court that inmates were awake and in pain when the lethal drugs were administered. Bonnyman found that the current method did not specify a sufficient dosage of sodium thiopental, part of a three-drug "cocktail," to ensure the prisoner was fully anesthetized, allowing for "death by suffocation while the prisoner is unconscious." The state proposed a revised plan to confirm the prisoner is unconscious: having the warden call out his name, shake him, and brush his eyelashes. Bonnyman found the revised procedure, administering the two remaining drugs only once there were no signs of consciousness, constitutional [The Tennessean report]. After Bonnyman's November decision, the Tennessee Supreme Court [official website] temporarily stayed the executions [Nashville City Paper report] of four prisoners, effectively placing the second moratorium on executions [TN.gov backgrounder] in Tennessee in the last three years.

In September 2007, a federal judge held that Tennessee's revised death penalty protocols [text, PDF; JURIST report], devised earlier that year by the Tennessee Department of Corrections at the request of then-governor Phil Bredesen, did not ensure that prisoners' are properly anesthetized before they receive a lethal injection and thus constitute "cruel and unusual" punishment. Bredesen ordered a moratorium on executions [executive order, PDF; JURIST report] earlier that year and directed the Tennessee Department of Corrections to review the manner in which death sentences are administered. Bredesen accepted new protocols and the state conducted its first execution [JURIST report] under the new rules in May 2007. The protocol included more detailed guidelines for administering lethal injections but still includes a controversial three-drug "cocktail" which some said may be ineffective in preventing inmates from suffering a painful death [JURIST report]. The number of executions that took place in the US in 2010 was down 12 percent from 2009, according to the Death Penalty Information Center (DPIC) [advocacy website] annual report [text, PDF; JURIST report]. DPIC attributes the decrease in executions to several factors, including controversy over lethal injections [JURIST news archive]. The report also states that a recent poll shows 61 percent of Americans would choose various alternative sentences over the death penalty as the proper punishment for murder. Executions resumed in the US in April 2008 after the Supreme Court lifted an effective ban on the death penalty by upholding the constitutionality of lethal injection [JURIST report].




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Federal judge sentences Somali pirate to nearly 34 years
Brian Jackson on February 16, 2011 2:18 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday sentenced Somali pirate Abduwali Muse to 34 years in prison [FBI press release] for the 2009 hijacking of the vessel Maersk Alabama. Muse had originally pleaded guilty [JURIST report] in May to hijacking, kidnapping and taking hostages in the matter. Muse has claimed to be a minor at the time of the attack on the Maersk Alabama, an item used by his defense team in an effort to have the sentence reduced [Reuters report]. Judge Loretta Preska, unswayed by the defense, imposed a sentence on the high end of the range of possible sentences, saying that such a long prison term was necessary to deter piracy [Bloomberg report].

Piracy near the continent of Africa has become an increasingly serious problem for private shipowners and many nations. Also on Wednesday, a Norwegian ship owner suggested that pirates should be executed on the spot [AP report] when they attempt to hijack ships, a stance that drew criticism from the Norwegian government. While private citizens have their own opinions, the tact by governments has been to arrest and imprison pirates. In November, a Somali pirate was sentenced to 30 years in prison [JURIST report] by a federal judge in Virginia for an attack on a Navy vessel. One of the most active nations in trying suspected pirates is Kenya, which has opened a court entirely devoted to hearing piracy cases [JURIST report].




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Senate votes to extend controversial Patriot Act surveillance provisions
Sarah Miley on February 16, 2011 1:56 PM ET

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[JURIST] The US Senate [official website] on Tuesday voted 86 to 12 [roll call vote] to extend three surveillance provisions of the USA Patriot Act [text; JURIST news archive] through May 27. The measures were set to expire on February 28. The provisions extended include roving wiretaps, "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The vote garnered support from both parties, and was seen as a delay tactic to allow Congress to further debate and hold hearings over the controversial counter-terrorism law. The American Civil Liberties Union [official website] released a statement [press release] chiding the Senate's decision, but urged Congress to use the time permitted by the extension wisely:
Every day that Congress continues to push back the February expiration deadline, the Patriot Act continues to erode one of Americans' most basic rights -- the freedom from unwarranted government intrusion into their privacy. If there has to be an extension of this law, we urge Congress to use the time well to finally rein in the pernicious impact of the intrusive provisions at stake.
The bill will now be sent back to the US House of Representatives [official website] for approval.

Earlier this week, the House passed [JURIST report] a similar bill that would extend the three provisions until December. A vote on the bill [HR 514] to extend the provisions failed [JURIST report] last week under a special rule that required a two-thirds majority, but passed Monday with a simple majority. Earlier this month, the Obama administration released a statement of administration policy [text, PDF] vying for a three-year renewal of the provisions, but expressed support for the bill passed Monday. The provisions were previously extended in February 2010 after the Obama administration asked the Senate Judiciary Committee to extend [JURIST reports] the Patriot Act.




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Federal judge grants motion for Bagram detainees to amend habeas petitions
Aman Kakar on February 16, 2011 1:03 PM ET

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[JURIST] District Judge John D. Bates of the United States District Court for the District of Columbia [official website] granted a motion to amend [order, PDF] petitions for writs of habeas corpus on Tuesday for four detainees held at Bagram Air Force Base (Bagram) [official website; JURIST news archive]. Bates' ruling [opinion, PDF] granted the amended petition on the basis of new evidence offered by the petitioners, including assertions that civilian criminal trials for Afghan nationals have begun in Bagram, that movement and retention of detainees in Afghanistan reflects the Executive Branch's aim to avoid judicial scrutiny of detention policies, and that there are plans to hold non-Afghans in order to avoid obligations before courts. The petitioners claim that the new evidence undercuts the jurisdictional analysis applied by the US Court of Appeals for the District of Columbia Circuit [official website] in its May 21, 2010 ruling [JURIST report] denying the defendants' habeas corpus challenge. The respondents countered that the new information is not factually based and would not change the court's analysis of the issue. Bates expressed doubts regarding the success of the petitioners amended writ, but allowed the motion to amend concluding that:
While the Court has some doubts about the consequence of the additional evidence under that analytical framework, that issue is better explored through full consideration of the evidence and the parties' positions, rather than under the limited "futility" appraisal in which it is now presented. That will, moreover, be consistent with Rule 15's strong encouragement of amendment -- if the facts presented may enable relief then amendment should be "freely given" and a plaintiff should be permitted the opportunity to have the claims tested on their merits.
Bates denied the petitioners request for jurisdictional discovery. He instead directed them to assert the jurisdictional discovery issue in opposition to the expected request to dismiss the amended habeas corpus petition. The amended petitions must be filed by March 28, 2011.

The DC District Court has been the venue for many habeas challenges during the course of the war on terror. In April 2010, Judge Thomas Hogan dismissed as moot [JURIST report] 105 habeas corpus petitions of former Guantanamo Bay [JURIST news archive] detainees no longer in US custody. Hogan wrote that in deciding the case, the court was answering one of the questions left open by the Supreme Court's decision in Boumediene v. Bush [JURIST report], "what happens to a Guantanamo detainee's habeas claim once he is transferred or released." In June 2009, Bates granted a government motion [JURIST reports] to certify and suspend these defendants' habeas petitions, pending appeal to the Circuit Court. The certification allowed the US Department of Justice (DOJ) [official website] to seek interlocutory appeal from the DC Circuit. The DC Circuit's decision to deny habeas corpus relief in May 2010 drew criticism from commentators [JURIST op-ed] who stated that the decision provided the Executive branch with virtually unlimited cover to deny human rights.




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Ecuador constitutional court approves anti-crime constitutional reforms
Daniel Makosky on February 16, 2011 12:56 PM ET

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[JURIST] The Constitutional Court of Ecuador [official website, in Spanish] on Wednesday certified a slate of constitutional reforms submitted by President Rafael Correa [official website, in Spanish; BBC profile]. The court amended without explanation two of the 10 referendum questions [text, PDF; in Spanish] that Correa offered [JURIST report] last month, but otherwise authorized [AFP report] the proposals to proceed to the Electoral Council for approval. The proposed reforms would alter the way judges are chosen, amend a preventative detention law 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 that the measures are aimed at solidifying power and quieting dissent, and have accused Correa of following the authoritarian model of Venezuelan President Hugo Chavez.

In October, the Ecuadorian government announced it would 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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UN commissioner urges Bahrain to respect rights of demonstrators
Sarah Posner on February 16, 2011 12:28 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] voiced [press release] Wednesday the need for Bahrain to respect the rights of demonstrators. The announcement came after a news release [press release] Tuesday by the Office of the High Commissioner for Human Rights (OHCHR) [official website] reporting that two peaceful protesters were killed earlier this week in Bahrain. Pillay stated that "authorities everywhere must scrupulously avoid excessive use of force, which is strictly forbidden in international law. They must conduct prompt, impartial and transparent investigations where there have been breaches of this obligation." Pillay emphasized the importance of freedom of expression and the right of peaceful assembly for Bahrain's stability. Pillay also stressed that Bahrain has an obligation to respect human rights as a party to the International Covenant on Civil and Political Rights [text]. The protest in Bahrain, calling for democratic change, was sparked by the uprising in Egypt that ousted the 30-year reign of President Hosni Mubarak [Al Jazeera profile].

Earlier this month, Pillay called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [official statement; JURIST report] who have been arrested and for the government to investigate whether the violence against protesters [JURIST report] has been planned. Pillay emphasized the importance of protecting human rights during a time of political change in the region. In January, shortly after the protests in Egypt began, UN Secretary-General Ban Ki-moon [official website] and Pillay urged the Egyptian government to exercise restraint and respect the rights of protesters [JURIST report]. Pillay acknowledged [press release] reports of tactics including rubber-coated bullets, tear gas, water cannons and batons, and called on the government to investigate the reports of excessive force including civilian deaths.




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Lebanon tribunal defines 'terrorism' for Hariri case
Hillary Stemple on February 16, 2011 10:01 AM ET

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[JURIST] The appeals chamber of the UN Special Tribunal for Lebanon (STL) [official website] on Wednesday issued a unanimous ruling [summary, PDF; press release] on several procedural issues, including the definition of terrorism, in judicial proceedings relating to the assassination of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. The STL began debate on the issue [JURIST report] earlier this month in order to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people. In its ruling, the court stated that they are bound by statute to define the term terrorism using the Lebanese Criminal Code [text, PDF] and that they may not apply any international definition of terrorism. The court held that, under Article 314 of the criminal code, a conviction on the charge of terrorism requires proof of an act intended to spread terror and use of a means "liable to create a public danger." In order to define the term "means," the court examined Lebanese case law, which offered a narrow interpretation of the term, limiting the definition to a specific list enumerated in the code. The court rejected the narrow interpretation for the purposes of the international tribunal, stating:
[W]hile fully respecting the Lebanese jurisprudence relating to cases of terrorism brought before Lebanese courts, the Tribunal cannot but take into account the unique gravity and transnational dimension of the facts at issue and the Security Council's consideration of them as particularly grave international acts of terrorism justifying the establishment of an international court. As a result, for the purpose of adjudicating these facts, the Tribunal is justified in applying, at least in one respect, a construction of the Lebanese Criminal Code's definition of terrorism that does not necessarily coincide with that the construction suggested by Lebanese courts.
Instead of defining means by the enumerated list, the court held that the only requirement is that "the means used to carry out the terrorist attack be liable to create a common danger" and that the trial judges should be given latitude in determining whether the requirement was met after having considered the facts presented in the case.

The court's ruling is expected to clear the way for the pretrial judge to determine whether to confirm a sealed indictment [statement, PDF; press release] filed [JURIST report] last month by STL prosecutors and charging an unknown number of people for their roles in Hariri's assassination. 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]. In August, Hezbollah submitted evidence to the STL [JURIST report] linking Israel with the bombing. The STL asked for the evidence [JURIST report] 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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Indiana House passes anti-same-sex marriage amendment
Matt Glenn on February 16, 2011 9:07 AM ET

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[JURIST] Indiana's House of Representatives on Tuesday approved an amendment [HJR 6 text; legislative materials] to the state's constitution that would ban same-sex marriages [JURIST news archive] and civil unions and prohibit government recognition of those performed in other states. The proposed amendment, which passed by a margin of 70-26 [South Bend Tribune report], reads: "Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized." In order to become law, Indiana's constitution requires [Art 16 text] that both houses of the General Assembly [official website] approve the resolution, that both houses of the next separately elected General Assembly approve the resolution, and finally that the voters approve the resolution after it has been approved by consecutive General Assemblies. This means that the resolution cannot take effect until at least 2014. The Indiana Senate has yet to vote on the resolution.

Last week, the Hawaii House of Representatives [official website] passed a bill legalizing same-sex civil unions [JURIST report] in the state. The bill must still survive a vote in the state senate and be signed by Governor Neil Abercrombie. Earlier this month, Illinois Governor Pat Quinn (D) signed a bill [JURIST report] legalizing same-sex civil unions in the state. The "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." The law, which opponents fear move Illinois closer to approving same-sex marriage, will go into effect June 1. Last month the Wyoming Senate voted 20-10 in favor of a constitutional amendment [JURIST report] that would prevent the state from recognizing same-sex marriages from any jurisdiction. The decision, which was split down party lines, will 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 (R) and then appear as a referendum item on the 2012 ballot. The following day, the House Judiciary Committee also voted 5-4 [Star-Tribune report] to defeat House Bill 150, which would have recognized civil unions in the state.




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Federal appeals court overturns Guantanamo detainee release order
Julia Zebley on February 16, 2011 8:13 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday overturned [opinion, PDF] a lower court's decision to grant habeas corpus to Yemeni Guantanamo Bay [JURIST news archive] detainee Saeed Hatim, blocking his release. In a per curiam opinion, the judges stated that the lower court's decision was inconsistent with current laws on detainees, and that, since advances in the law had been made since Hatim's case came to trial, his case must be reconsidered:
The district court ruled that the military could detain only individuals who were "part of" al-Qaida or the Taliban; and that Hatim did not fit that description. That ruling is directly contrary to Al-Bihani v. Obama, which held that "those who purposefully and materially support" al-Qaida or the Taliban could also be detained. Hatim admits the error, but says it was harmless. We cannot see how. As the district court stated in issuing the stay, Al-Bihani "calls into question" a "key determination" upon which the order rested. The district court also ruled that in order to detain Hatim the government had to prove that he was part of the "command structure" of al-Qaida or the Taliban. Our intervening decisions in Bensayah v. Obama and Awad v. Obama held that although it is sufficient to show that an individual is in the command structure, such a showing is not necessary in order to defeat a habeas petition.
A judge for the US District Court for the District of Columbia [official website] granted [opinion, PDF] Hatim's petition for habeas corpus in December 2009, ordering his release [JURIST report]. The US Department of Defense [official website] alleged that Hatim trained at the al Farouq paramilitary camp in Afghanistan. Tuesday's opinion ordered future proceedings in Washington's federal trial court.

Earlier on Tuesday, detainee Noor Uthman Mohammed [DOD materials] pleaded guilty [press release] before a military tribunal to terrorism charges [JURIST report]. Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] used the death of a Guantanamo detainee to highlight what it claims are problems [JURIST report] with the detention system currently used by the US for dealing with suspected terrorists. The detainee, Awal Gul, had been at the Guantanamo Bay detention center since October 2002, suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF]. Gul died of an apparent heart attack after he had completed some aerobic exercises. The CCR believes that the circumstances surrounding Gul's death illustrate the inherent problem with the detention center and the policy the US follows in detaining and indefinitely holding suspected terrorists, claiming that the facility has become a purgatory, where people are held indefinitely. As the number of detainees at the Guantanamo Bay facility decreases, the issue of what to do with those remaining in US custody continues to be a significant issue. In January, Human Rights Watch criticized President Barack Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign.




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Egypt military appoints judges to amend constitution
Andrea Bottorff on February 15, 2011 2:57 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces announced Tuesday that it has formed a committee of judges and politicians to oversee amending the Egyptian constitution [text] within the next 10 days. When the council assumed power on Sunday, it indicated that part of its transition plan [proclamation text] was to form a committee to amend constitutional articles prior to holding a public referendum. The plan follows the intentions of ousted president Hosni Mubarak [Al Jazeera profile], who had approved the formation of a panel [JURIST report] to amend the constitution before he resigned. The changes may also allow the creation of new political parties. The Muslim Brotherhood, which is currently banned in Egypt, announced on Tuesday that it will form a party [LAT report] to participate in upcoming elections. Critics say that 10 days is not enough time [Telegraph report] for the committee to make substantial changes to the constitution, such as abolishing Article 2, which upholds Sharia law [CFR backgrounder; JURIST news archive]. However, the new committee also suggests that the military council is on track to hold elections in six months [Indian Express report] and return power to the Egyptian people.

The military pledged last week to lift the emergency laws [JURIST report] that have been in place since Mubarak assumed power. Prior to Mubarak's resignation, Egypt's government had reached out [JURIST report] to various opposition leaders in the wake of demonstrations that swept the country. Among those in the opposition that have been approached are the Muslim Brotherhood, the oldest and largest Islamic political group in the world. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].




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Italy PM Berlusconi to stand trial on abuse of power, underage prostitution charges
John Paul Putney on February 15, 2011 2:05 PM ET

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[JURIST] An Italian judge on Tuesday ordered billionaire media mogul and Italian Prime Minister Silvio Berlusconi [BBC profile; JURIST news archive] to stand trial on charges of paying for sex with a minor and abuse of power. Berlusconi allegedly paid 7,000 euros to then 17-year-old dancer, Karima El Mahroug, for sex and later called police to secure her release [BBC report] while she was detained on an unrelated suspicion of theft. Berlusconi has denied any wrongdoing and lashed out at the charges, calling them groundless [Bloomberg report]. Judge Cristina di Censo announced the indictment against the premier, which included approving a request from prosecutors to expedite the trial [CNN report], which is set to begin on April 6 in Milan. The expedited trial skips the preliminary hearing and is approved in cases with overwhelming evidence. The prosecution has submitted [Daily Mail report] 782 pages of wire taps, intercepted text messages and bank details as part of the case. The trial will be heard by three randomly-selected judges [WP report], all women. Berlusconi's legal team has argued that the judge does not have the power to order the trial of the premier.

Although not the first political scandal for Berlusconi, this recent fiasco has prompted widespread demonstrations and renewed calls for the premier to step down. Last month, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a law [materials, in Italian] backed by Berlusconi that would have granted the premier and other public officials temporary immunity from charges while in office. 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. In October, Italian prosecutors launched a tax inquiry against Berlusconi [JURIST report] for tax declarations he made in 2003 and 2004 relating to the commercial broadcast company Mediaset [corporate website, in Italian], which Berlusconi founded. The investigation is the fourth time Berlusconi has faced allegations of fraud in relation to his Mediaset company. In addition to the trial for abuse of power and underage prostitution, Berlusconi faces three other ongoing judicial proceedings.




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EU lawmakers consent to common patent system
Maureen Cosgrove on February 15, 2011 1:14 PM ET

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[JURIST] The European Parliament [official website] on Tuesday agreed to the establishment of a common patent system [press release] despite lack of accord from Spain and Italy. EU member states have attempted to establish a uniform patent system for several years, but a unanimous vote was unobtainable due to disapproval from a few member countries. The Lisbon Treaty [text] generally requires a unanimous vote from EU member states, but the "enhanced co-operation" [EU backgrounder] provision allows groups of member states to adopt new common rules when unanimity is difficult to achieve. Lawmakers argue that a uniform patent system is necessary [Bloomberg report] to keep European nations competitive with global rivals like China by lowering patent costs for small businesses in particular. Spain and Italy refuse to participate [BBC report] because Internal Market Commissioner Michel Barnier [official website] insists on using English, French and German as the sole official languages of EU patents. The Council of Competitiveness Ministers [official website] is expected to adopt the decision authorizing "enhanced cooperation" in March. The European Commission [official website] will then submit its legislative proposals.

The EU has applied the "enhanced co-operation" provision in only one other resolution. In January 2010, the EU employed the provision to enable some EU countries to work together to create uniform marriage laws [JURIST report] for mixed-nationality couples on the grounds that cross-border divorces are often problematic. The measure, supported by 10 countries [BBC report], was passed [press release] under enhanced-cooperation.




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Iran lawmakers urge death penalty for opposition leaders
Sarah Posner on February 15, 2011 1:12 PM ET

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[JURIST] Iranian lawmakers called Tuesday for opposition leaders to face trial and death after Monday's clash with security forces. Thousands of Iranians protested Monday in solidarity with Egypt's revolt against ousted president Hosni Mubarak [Al Jazeera profile]. Pro-government legislators demanded [AP report] opposition leaders Mir-Hossein Mousavi [BBC profile; JURIST news archive], Mehdi Karroubi [NYT profile; JURIST news archive] and former reformist president Mohammad Khatami [BBC profile] be held responsible for the protests, which resulted in one death and numerous injuries. Monday's protests in Iran were the first demonstrations since December 2009, following the disputed presidential elections [JURIST news archive] that gave Mahmoud Ahmadinejad [official website] a second term.

Last week, Karroubi was reportedly placed under house arrest [JURIST report], according to his website Saham News [website, in Persian]. On Thursday morning, security forces reportedly took control of the area outside of Karroubi's residence and barred all family members, except his wife, from entering. The report indicated that the arrest was related to calls by Karroubi and Mousavi for rallies in support of the recent political reform movements in Tunisia and Egypt [CFR backgrounder].




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Guantanamo detainee pleads guilty to terror charges before military tribunal
Ashley Hileman on February 15, 2011 12:51 PM ET

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[JURIST] Sudanese Guantanamo Bay [JURIST news archive] detainee Noor Uthman Mohammed [DOD materials] pleaded guilty [press release] before a military tribunal Tuesday to terrorism charges. Mohammed entered guilty pleas [Reuters report] to one count of providing material support of terrorism and one count of conspiracy. The charges against him stem from meetings with al Qaeda and his service as a weapons instructor and manager at the Khaden military camp in Afghanistan, where hijackers and other members of al Qaeda trained prior to the 9/11 attacks. Mohammed was charged [JURIST report; charge sheet, PDF] in May 2008 and has been detained at Guantanamo since his capture in Pakistan in 2002. Prior to the plea agreement, the details of which have not been released, Mohammed faced life in prison if convicted of the charges against him. A jury, consisting of at least five US military officers will now be chosen to issue a sentence in the hearing, set to begin this week.

Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] used the death of a Guantanamo detainee to highlight what it claims are problems [JURIST report] with the detention system currently used by the US for dealing with suspected terrorists. The detainee, Awal Gul, had been at the Guantanamo Bay detention center since October 2002, suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF]. Gul died of an apparent heart attack after he had completed some aerobic exercises. The CCR believes that the circumstances surrounding Gul's death illustrate the inherent problem with the detention center and the policy the US follows in detaining and indefinitely holding suspected terrorists, claiming that the facility has become a purgatory, where people are held indefinitely. As the number of detainees at the Guantanamo Bay facility decreases, the issue of what to do with those remaining in US custody continues to be a significant issue. In January, Human Rights Watch criticized President Barack Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign.




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House votes to extend controversial Patriot Act surveillance provisions
Zach Zagger on February 15, 2011 11:12 AM ET

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[JURIST] The US House of Representatives [official website] voted 275 to 144 [roll call vote] Monday to extend surveillance provisions of the USA Patriot Act [text; JURIST news archive] which could expire February 28. A vote on the bill [HR 514] to extend the provisions failed [JURIST report] last weak under a special rule that required a two-thirds majority, but passed Monday with a simple majority. The provisions set to expire included the authority: for roving surveillance, including wire-taps and cell phone monitoring; to compel production of business records and "other tangible things" under section 215 of the Act; and to allow the US to target non-US persons "who engage in international terrorism or activities in preparation therefor, but are not necessarily associated with an identified terrorist group," under the "lone wolf" amendment, section 6001. The American Civil Liberties Union (ACLU) [advocacy website] has been an outspoken critic of the Patriot Act. ACLU legislative counsel Michelle Richardson said [press release]:
It has been nearly a decade since the Patriot Act was passed and our lawmakers still refuse to make any meaningful changes to this reactionary law. The right to privacy from government is a cornerstone of our country's foundation and Americans must be free from the kind of unwarranted government surveillance that the Patriot Act allows. If Congress cannot take the time to insert the much needed privacy safeguards the Patriot Act needs, it should allow these provisions to expire.
Though most Republicans supported the Bill, the vote did not come down on strict party lines [NYT report] with 65 Democrats voting in favor of it, including Representative CA Dutch Ruppersberger (D-MD) [official website], the ranking Democrat on the Intelligence Committee.

Earlier this month, the Obama administration released a Statement of Administration Policy [text, PDF] vying for a three-year renewal of the provisions, but expressed support for the Bill passed Monday. The provisions were previously extended in February 2010 after the Obama administration asked the Senate Judiciary Committee to extend [JURIST reports] the Patriot Act. The US Court of Appeals for the Ninth Circuit [official website] dismissed [JURIST report] a constitutional challenge to the Patriot Act in December 2009 due to lack of standing. The US District Court for the District of Oregon [official website] had previously ruled that certain provisions of the act were unconstitutional [JURIST report]. The Patriot Act was passed in 2001, on the heels of the 9/11 attacks, greatly expanding US law enforcement's powers of surveillance and discretion when conducting terrorism investigations, and the US Government's ability to regulate foreign individuals' and immigrants' financial transactions.




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Ecuador judge orders Chevron to pay $8.6 billion in pollution case
Matt Glenn on February 15, 2011 9:45 AM ET

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[JURIST] A judge for the Provincial Court of Sucumbios in Ecuador ordered US oil company Chevron [corporate website; JURIST news archive] to pay $8.6 billion in damages, finding that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest. Chevron vowed to fight the ruling [press release], calling it "illegitimate and unenforceable" and "the product of fraud." The plaintiffs' lawyer said he also plans to appeal [NYT report], after the court awarded far less than the $113 billion for which the plaintiffs reportedly asked. It is unclear when, if ever, the Chevron will pay the judgment [WSJ report]. Chevron has no assets in Ecuador, and it recently won rulings from a panel of arbitrators [order, PDF] at the Permanent Court of Arbitration [official website] in The Hague and a judgement [order, PDF] in the US District Court for the Southern District of New York [official website] temporarily barring the enforcement of any judgment against Chevron.

Earlier this month, Chevron filed a lawsuit [press release] against plaintiffs' lawyers and consultants in the case, claiming that professionals for the plaintiffs were attempting to extort Chevron. In July, the US Court of Appeals for the Second Circuit upheld [LAT report] a May ruling [NYT report] by the Southern District of New York ordering filmmaker Joe Berlinger to turn over to Chevron certain outtakes from his 2009 documentary Crude [film website]. Chevron claims the outtakes show plaintiffs' lawyers discussing illegal and unethical tactics, including ghost-writing a court appointed expert's report, intimidating a judge and colluding with government officials. Chevron claims to have evidence that the plaintiffs influenced a court appointed expert who, in 2009, recommended Chevron be found liable [Forbes report] for $27 billion. The suit was re-filed in Ecuador [AP report] in 2003 after being dismissed by the Southern District of New York in 1996. Chevron claims that a 1995 cleanup agreement between Ecuador and Texaco that was completed in 1998 at a cost of $40 million absolves Chevron of all liability. Plaintiffs originally filed suit against Texaco, which operated the oil fields from the 1960's until the early 1990's, in the Southern District of New York in 1993.




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Hungary prosecutors charge top Nazi suspect with war crimes
LaToya Sawyer on February 14, 2011 3:26 PM ET

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[JURIST] Hungarian prosecutors on Monday charged long-time Nazi suspect, Sandor Kepiro, with war crimes committed during the 1942 Novi Sad massacre in Serbia. Kepiro was convicted both in 1944 and 1946 and sentenced to 10 years for involvement in the raids. He was, however, released, and promptly fled to Argentina. The Simon Wiesenthal Center (SWC) [advocacy website], a Jewish human rights organization committed to finding and prosecuting Holocaust war criminals, is responsible for finding the former Hungarian military officer in 2006 helping bring him into the custody of Budapest officials. SWC Israel director Dr. Efraim Zuroff, expressed the importance [press release] of convicting their top-listed Nazi criminal and its impact on Hungarian society:
It is they [the families of victims] who so deserve that justice finally be achieved in this case, so that they can finally achieve a measure of closure, even if it is many years after the crimes.

The indictment of Kepiro also sends a powerful message that the passage of time does not diminish the guilt of the killers and that old age should not protect those who committed such heinous crimes. ... [W]e finally can see the light at the end of the tunnel.

Kepiro has denied all charges. His lawyers have expressed confidence that the Hungarian prosecutors will not produce sufficient documentation to uphold his conviction.

One of the major goals of SWC is to prosecute Nazi criminal suspects before they die. Kepiro, 97, is at the top of the list for oldest Nazi criminal suspects that have been convicted for war crimes. In November, Nazi guard Samuel Kunz [Trial Watch profile], 89, passed away [JURIST report] in his home before he could be brought to trial. He was accused of aiding in the killing of hundreds of thousands of Jewish people at the Belzec concentration camp [HRP backgrounder]. In November, alleged Nazi death camp prison guard John Demjanjuk, 90, [TIME profile; JURIST news archive] accused the German judges [JURIST report] conducting his trial of bias [text] after the they rejected a number of 23 defense petitions to discontinue his trial. His family and physician argued that Demjanjuk, was too frail and in too much pain to make it through the trial.




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Iran creating special court for media crimes
Erin Bock on February 14, 2011 3:02 PM ET

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[JURIST] The Iranian government will set up a special court to try media and culture crimes, state news agency IRNA [official website, in Persian] reported Sunday. The judiciary has set up a special prosecutors office [AP report] to handle alleged offenses committed in media and cultural platforms. Both the court and office will operate under the supervision of Tehran's chief prosecutor. The head of Iran's Government Employees Court, Abbas Zagholi, said the new court is necessary because of advances in mass media [CNN report]. Opponents, however, worry that the new court will be used to crack down on dissidents. The new court is set to begin operations next month.

Iran has faced criticism in its efforts to control the media following the country's 2009 presidential election [JURIST news archive]. In September, Iranian blogger Hossein Derakhshan was sentenced to 19.5 years in prison [JURIST report] for charges stemming from his actions to popularize certain blogs as well as a five-year ban from membership in political parties and fines totaling close to USD $45,000. Media freedom group Reporters Without Borders (RSF) [advocacy website] stated that it was the longest sentence ever imposed on a blogger in Iran and urged President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] to intercede. Also in September, journalist Shiva Nazar Ahari was sentenced to six years in prison [JURIST report] for charges including warring against God. In April, journalist Mohamad Nourizad was sentenced to three-and-a-half years in prison [JURIST report] and 50 lashes for charges stemming from his activities after the elections, including distributing propaganda. In May, RSF included Ayatollah Ali Khamenei [BBC profile] and Ahmadinejad in a report listing the 40 "Predators of Press Freedom" [JURIST report] in which Iran is referred to as "the Middle East's biggest prison for the media."




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Pakistan court issues indictment over blasphemy law assassination
Megan McKee on February 14, 2011 3:02 PM ET

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[JURIST] A Pakistani court on Monday indicted police guard Malik Mumtaz Hussain Qadri, accused of assassinating liberal politician and governor of Pakistan's Punjab province Salman Taseer for opposing the nation's blasphemy law [text; JURIST news archive]. Qadri reportedly told the court that he did not murder anyone intentionally [AFP report] but had taught a lesson to an apostate. The next hearing is scheduled for February 26, and witnesses and evidence will be presented. Taseer's assassination has increased tensions in Pakistan, as the nation's religious right has publicly praised Qadri for his actions, bringing the liberal elite's reform efforts to a halt. Pakistan has never executed anyone under its blasphemy law, and most sentences are overturned or commuted by appellate courts. This is the most high-profile assassination in Pakistan since the 2007 assassination of former prime minister and Pakistan People's Party (PPP) [official website] leader Benazir Bhutto [BBC obituary; JURIST news archive].

Taseer was shot and killed [JURIST report] on January 4, while getting into his car at Islamabad's Kohsar Market by one of his own security guards, apparently because of his opposition to Pakistan's blasphemy law. 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 [JURIST news archive] during an argument with other women in her village last year. Tasseer had spoken in Bibi's defense. In December, the Lahore High Court (LHC) [official website] ordered [JURIST report] a stay against any amendments to Pakistan's blasphemy laws pending further proceedings. The blasphemy laws were introduced in 1986 as a way of protecting Muslim beliefs from insults. In response to the repeated calls for repeal, Pakistani Federal Minister for Minority Affairs Shahbaz Bhatti [official profile] has said the laws may be amended to prevent misuse, but they will not be repealed. Advocacy groups such as Human Rights Watch [JURIST report], as well as LHC advocate Saroop Ijaz [JURIST op-ed] have called for the laws to be repealed.




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Japan lawsuit challenges single-surname requirement
Ann Riley on February 14, 2011 1:46 PM ET

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[JURIST] Five Japanese citizens filed suit in the Tokyo District Court [official website, in Japanese] on Monday challenging the constitutionality of a civil law that forces married couples to choose a single surname. The plaintiffs claim that Article 750 of the Japan Civil Code, requiring a husband and wife to assume the same surname when married, violates Articles 13 and 24 of the Japanese Constitution [texts], which ensures respect for individuals and equality between husband and wife in a marriage. Filing the first lawsuit challenging the surname requirement, the plaintiffs argue that, while the constitution requires equal rights between partners, the civil code requires the bias of one by forcing them to choose a single surname. The case also challenges the government of Prime Minister Naoto Kan [official website, in Japanese], whose Democratic party, when elected in 2009, promised, but failed to pass legislation amending the one-surname law. The plaintiffs, four women and one of their husbands, are demanding that local government offices accept marriage certificates listing different surnames and seek six million yen (USD $70,000) in damages [AFP report] from the government for emotional distress.

In 1996, the Japanese Ministry of Justice [official website, in Japanese] Legislative Counsel outlined an amendment to the Civil Code [text], proposing that couples may retain their respective surnames. Again last year, the Ministry of Justice proposed a similar amendment [Japan Today report] after a policy meeting [transcript, in Japanese]. However, due to political opposition, no further actions were ever taken on either of the proposals. Japan is the last remaining member of the Group of Eight [BBC profile; JURIST news archive] nations to require that married couples have the same surname. Civil advocates argue that the forcible use of one surname implicates serious human rights abuses. In 2009, the UN Convention on the Elimination of All Forms of Discrimination against Women [text] urged Japan [UN report, PDF] to eliminate the "discriminatory" one-surname requirement and "take immediate action to amend the Civil Code."




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Hawaii House passes bill recognizing same-sex civil unions
Ashley Hileman on February 14, 2011 12:52 PM ET

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[JURIST] The Hawaii House of Representatives [official website] on Friday voted 31-19 to pass a bill [SB 232 text,] that would recognize same-sex civil unions [JURIST news archive]. The bill will now advance to the state Senate [AP report] for a vote before reaching the desk of Hawaii's new democratic governor, Neil Abercrombie [official website], who has previously voiced his support for civil unions. If successful, the bill will not only recognize civil unions, but will also provide partners lawfully entering into them with "all the same rights, benefits, protections, and responsibilities under law" as are granted to individuals entering into marriage. A similar bill was vetoed [JURIST report] in July by former governor Linda Lingle (R), who felt that, because it was an issue of "such significant societal importance," it was better suited for a vote in a public referendum. Hawaii would be the seventh state to offer essentially the same benefits and protections afforded to marriages to civil unions.

Earlier this month, Illinois Governor Pat Quinn (D) signed a bill [JURIST report] legalizing same-sex civil unions in the state. The "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." Additionally, it would allow religious institutions within the state to choose whether to observe or officiate the union. Opponents fear that this bill will move Illinois closer to legalizing same-sex marriage [JURIST news archive] and threaten the sanctity of marriage. The new law is set to take effect on June 1. In contrast, last month the Wyoming Senate voted 20-10 in favor of a constitutional amendment [JURIST report] that would prevent the state from recognizing same-sex marriages from any jurisdiction. The decision, which was split down party lines, will 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 (R) and then appear as a referendum item on the 2012 ballot. The following day, the House Judiciary Committee also voted 5-4 [Star-Tribune report] to defeat House Bill 150, which would have recognized civil unions in the state.




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Algeria government to lift 19-year state of emergency
Zach Zagger on February 14, 2011 11:12 AM ET

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[JURIST] Algerian Foreign Minister Mourad Medelci said Monday the government will end the 19-year-old state of emergency laws amidst growing protests in Algeria and the ongoing protests in Tunisia and Egypt. Medelci told French radio station Europe 1 that the state of emergency will end in a few days [Al Jazeera report] but dismissed concerns that Algeria could end up like Tunisia and Egypt. The announcement comes after large demonstrations erupted across the country, with thousands violating a police ban by protesting in the capital Algiers. Medelci said that President Abdelaziz Bouteflika was considering making concessions and adjusting the government. Bouteflika's comments earlier this month also suggested an end to the state of emergency.

Algeria has been under a state of emergency since 1992 when the military canceled elections [WP report] fearing a win by religious fundamentalists. The state of emergency was declared [DOS backgrounder] after it became apparent that the militant Islamic Salvation Front (FIS) would win control of the government. The FIS grew in popularity after Algeria's new constitution in 1989 that allowed multiple political parties. Bouteflika came to power, winning the presidency in 1999 with 70 percent of the official vote and appearing to have the backing of the military. Algeria has struggled to maintain a stable government since gaining its independence from France in 1961. Voters in France overwhelmingly approved self-determination [JURIST backgrounder] for Algeria on January 8, 1961, by a 75 percent margin, ending nearly a decade of fighting in the French-Algerian War. On July 1, 1961, Algerians elected to become an independent nation by a near-unanimous margin.




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Khodorkovsky verdict product of coercion: judge's assistant
Sarah Paulsworth on February 14, 2011 10:37 AM ET

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[JURIST] Russian Judge Viktor Danilkin, who convicted [JURIST report] former Russian oil executive Mikhail Khodorkovsky [defense website profile; JURIST news archive] of money-laundering and embezzlement in December, did not write the verdict and was coerced into reading it [interview text, in Russian], Danilkin's assistant said Monday. Natalya Vasilyeva made the allegations in an interview she gave to Gazeta.ru website [official website] and the TV channel Dozjd. According to Vasilyeva, Danilkin, a judge for the Khamovnichesky District Court [official website, in Russian], was pressured and coached by officials from the Moscow City Court. "When something happened, when something went wrong, he had a duty to provide information to the Moscow City Court and, accordingly, received certain instructions on how to behave," she said. At the end of the trial, Danilkin wrote a verdict, but Vasilyeva said it probably "did not satisfy the higher ups" and he was therefore given a different verdict, which he was ordered to issue. Danilkin has responded to Vasilyeva's comments calling them slander [RFE/RL report].

In December, Danilkin sentenced [JURIST report] Khodorkovsky and his business partner, Platon Lebedev [defense website profile; JURIST news archive], to six additional years in prison, extending their imprisonment to a total of 14 years. Their defense counsel staunchly criticized the ruling, claiming [press release] that the court blocked significant amounts of testimony and evidence submitted by the defense and systematically quashed objections to their omission. The verdict drew vehement international criticism [JURIST report], including from US Secretary of State Hillary Clinton [official profile], who said [press release] that the ruling "raises serious questions about selective prosecution." The Russian Ministry for Foreign Affairs [official website, in Russian] dismissed critics, saying [press release, in Russian] that "[a]ttempts to exert pressure on the court are unacceptable." The men are currently serving eight-year prison sentences for fraud and tax evasion [JURIST report], to which they were sentenced in 2005 for the same money laundering from Yukos. In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that Putin ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president. In March, Khodorkovsky criticized Russia's justice system [JURIST report] as an "assembly line" that inevitably finds the government's political enemies to be guilty.




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Radical Indonesia cleric tried for terrorism
Dwyer Arce on February 14, 2011 9:16 AM ET

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[JURIST] The trial of Indonesian Muslim cleric Abu Bakar Bashir [CFR profile] began Monday in the District Court of South Jakarta. Bashir is charged with operating a terrorist training camp [Jakarta Globe report] in the mountains of the northwestern province of Aceh to prepare Islamic radicals to carry out attacks in the capital of Jakarta. Prosecutors allege that this group was also planning attacks modeled after the Mumbai attacks [JURIST news archive] and were targeting high-profile members of the Indonesian government, including President Susilo Bambang Yudhoyono [BBC profile]. It was also charged at the opening of the trial that Bashir aimed to establish an Islamic state [Al Jazeera report], using the province of Aceh as a base from which to conduct operations. He also allegedly amassed Rp1 billion (USD $112,285) to purchase weapons for the group, and sought to justify robberies and murder to his followers as a necessary tool in waging a holy war, according to the prosecutor. In addition to multiple terror charges, Bashir is also charged with mobilizing people to commit terrorist acts [BBC report], charges that carry a potential death sentence. Following Monday's proceedings, the trial adjourned until Thursday when the defense will begin preliminary arguments. Bashir has maintained his innocence, arguing that the charges against him are part of a US conspiracy.

Bashir was originally charged in August [JURIST report], and was suspected of links to al Qaeda [CFR backgrounder; JURIST news archive]. He is also suspected of ties to Jemaah Islamiyah (JI) [CFR backgrounder], a terrorist group with links to al Qaeda that has been implicated in a multitude of attacks in Indonesia, including the 2002 Bali nightclub bombing [JURIST news archive] that left more than 200 people dead. In 2006, the Indonesian Supreme Court overturned [JURIST report] Bashir's conviction on conspiracy charges connecting him with the 2002 Bali bombings. He was released from prison [JURIST report] earlier in 2006 after spending 26 months in jail on different charges related to the bombings.




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Pakistan issues arrest warrant for former President Musharraf in death of Bhutto
Carrie Schimizzi on February 13, 2011 12:27 PM ET

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[JURIST] An arrest warrant for former president Pervez Musharraf [BBC profile; JURIST news archive] was issued Saturday by a Pakistani anti-terrorism court in connection with the assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. The court determined Musharraf had not cooperated during the investigation of Bhutto's death, and investigators have alleged that Musharraf did not provide adequate security [DAWN report] for Bhutto when she was assassinated during a campaign rally in Pakistan in 2007. According to an interim criminal charge sheet issued last week [JURIST report] by the Federal Investigation Agency of Pakistan (FIA) [official website], Musharraf appointed and allegedly gave orders to the police officers accused of failing to protect Bhutto on the day she was assassinated. Specifically, the prosecution document alleges that Musharraf ordered the officers to remove a security detail for Bhutto prior to her departure and that he later ordered the same officers to hose down the scene of the assassination. Fawad Chaudry, a spokesman for Musharraf's All Pakistan Muslim League (APML) Party, told reporters [Times of India report] that Mushattaf would not comply with the warrant, which demands he appear in Pakistan February 19 for a court date, saying there is "no possibility" that Musharraf will appear in court. According to an unnamed FIA official, Pakistan will seek extradition [Express Tribune report] of Musharraf, who is living in exile in London.

In January, the governor of Pakistan's Punjab province, Salman Taseer, was assassinated [JURIST report] by one of his own security guards, apparently due to his opposition to Pakistan's blasphemy law [text; JURIST news archive]. Taseer, a senior member of the Pakistan People's Party (PPP) [official website], was shot 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. This was the most high-profile assassination since that of Bhutto in 2007 [JURIST report] and again involved issues of security. The Pakistani government and police forces have been criticized for their part in Bhutto's assassination. In April 2010, an independent UN commission formed to investigate the assassination issued a report holding the Pakistani government and police forces responsible [JURIST report] for failing to provide adequate security. The report also accused the government of failing to launch a proper investigation into the assassination.




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Egypt military suspends constitution, schedules elections
Drew Singer on February 13, 2011 9:49 AM ET

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[JURIST] The Egyptian military announced Sunday that it suspended the constitution [proclamation text] and will run the country until an election is held in six months. The television announcement [NYT report] marked the first time that the military had publicly disclosed its transition plan. The country's civilian cabinet will remain in power throughout the transition period. The military indicated [Al Jazeera report] that it still plans on using a representative panel to amend the constitution [JURIST report]. The proposed changes meet many of the demands made by protesters in Egypt, but the military did not address protesters' demands to lift the emergency laws [text, in Arabic] that have been in place for 30 years. Perhaps partly due to this omission, Egyptians continued to protest in Cairo's main square on Sunday, defying an order by the military [Haaretz report] to disperse.

The military had earlier pledged to lift the emergency laws [JURIST report] that have been in place since former President Hosni Mubarak [Al Jazeera profile] assumed power. Prior to Mubarak's resignation, Egypt's government had reached out [JURIST report] to various opposition leaders in the wake of demonstrations that have swept the country. Among those in the opposition that have been approached are the Muslim Brotherhood [official website], the oldest and largest Islamic political group in the world, currently banned from Egypt. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].




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Judge orders stay on release of Tucson shooter mug shots
Maureen Cosgrove on February 12, 2011 7:39 PM ET

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[JURIST] Federal District Judge Larry Burns [Judgepedia profile] ordered [text, PDF] on Friday that the federal mug shots of accused Tucson shooter Jared Lee Loughner temporarily be kept from public view. Defense counsel for Loughner filed an emergency motion to bar release of those photos to the public, arguing that release of the photos would bring unwanted media attention [Reuters report]. The motion claimed that the photos were unfairly prejudicial and their admission would be tantamount to trying him in the media. The court will hear arguments and make a final determination on the defendant's motion on February 18, 2011.

Burns was appointed [JURIST report] to hear Loughner's case one day after all federal judges in Arizona recused themselves [AP report] from the case following an order 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. Federal prosecutors charged Loughner [JURIST report] with murder and attempted murder for his role in the Arizona shooting attack [NYT backgrounder]. Loughner was indicted in January and pleaded not guilty [JURIST reports] 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].




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Federal judge upholds Wal-Mart firing of medical marijuana user
Maureen Cosgrove on February 12, 2011 7:02 PM ET

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[JURIST] A federal judge for the US District Court for the Western District of Michigan [official website] on Friday ruled [opinion, PDF] that Wal-Mart [corporate website; JURIST news archive] did not wrongly fire an employee who had been using medical marijuana to treat a brain tumor. In dismissing plaintiff Joseph Casias' lawsuit, Judge Robert Jonker determined that the Michigan Medical Marijuana Act (MMMA) [materials] is in place to protect licensed medical marijuana users, but employers are not prohibited from adopting policies that ban marijuana use regardless of cause. Casias was administered a drug test per Wal-Mart policy, tested positive, and was subsequently notified of the termination of his at-will employment. As Jonker stated in the opinion, the MMMA does not regulate private employment:
Nowhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace. Under Plaintiff's theory, no private employer in Michigan could take any action against an employee based on an employee's use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan.
The American Civil Liberties Union (ACLU) [advocacy website] said it will appeal the ruling [press release], arguing that the court's decision does not uphold the intentions of Michigan voters.

Courts have been forced to interpret state medical marijuana statutes in recent years. In January 2010, the California Supreme Court [official website] overturned [opinion, PDF; JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island, and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report], and does not violate the Controlled Substances Act (CSA).




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Federal judge rules LA emergency evacuation program discriminates against disabled people
Megan McKee on February 12, 2011 10:41 AM ET

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[JURIST] A federal judge of the US District Court of the Central District of California [official website] on Friday held [summary judgment, PDF] that the city of Los Angeles violated the Americans With Disabilities Act [text] by not accounting for people with disabilities in the city's emergency disaster planning. Judge Consuelo B. Marshall [official website] stated that it is the duty of the city to anticipate the needs of its citizens in a state of emergency, and to minimize last minute, individualized requests by persons with disabilities. Marshall ruled that Los Angeles' emergency preparedness program fails to proactively address the needs of all of its citizens.
The City provides a comprehensive emergency preparedness program to the general public but it denies individuals with disabilities meaningful access to the program while the benefits of the program remain open and easily accessible to other residents. Because of the City’s failure to address their unique needs, individuals with disabilities are disproportionately vulnerable to harm in the event of an emergency or disaster. The City's practice of failing to address the needs of individuals with disabilities discriminates against such individuals by denying them meaningful access to the City's emergency preparedness program.
Shawna L. Parks, counsel to the plaintiffs, also stated that the decision is not just a victory for people with disabilities and seniors but for all Los Angeles residents who need to know that the city is prepared when disaster strikes. City officials have been ordered to meet with the parties that brought the lawsuit within three weeks to come up with a plan that better accounts for all. This is the first decision of its type in the nations history.

This federal class action lawsuit was brought on behalf of all people with disabilities in Los Angeles, which is estimated to be around 800,000 individuals. The complaint was filed in January 2009 by Audrey Harthorn and a nonprofit independent living center located in downtown Los Angeles, Communities Actively Living Independent and Free [official website]. The plaintiffs are represented by Disability Rights Advocates [official website] and the Disability Rights Legal Center [official website]. Advocates stated that the need for a plan encompassing the disabled was highlighted during Hurricane Katrina, as mortality rates among the disabled and seniors were drastically disproportionate.




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Rights group chides prolonged detention of UK man in Guantanamo
Megan McKee on February 12, 2011 10:13 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Friday denounced [AI report] the detention of British resident Shaker Aamer at Guantanamo Bay [JURIST news archive], calling it a "mockery of justice". Aamer has been held by the US since 2002 on claims that he was fighting with the Taliban. This weekend marks the ninth full year of his detainment, and the US is yet to charge him with any crime. Aamer is the last UK resident being held at Guantanamo, and he is the center of a high-profile Amnesty campaign [campaign website] pushing for him to receive a fair trial or to be released so he may return to his family in the UK. Commenting on Aamer's incarceration AI UK Director Kate Allen stated:
The treatment meted out to Shaker Aamer has made a total mockery of justice. It’s been nine years without charges, without a trial and, in many ways, without much hope for Shaker, and we are determined to see his basic human rights restored. Now there could be light at the end of the tunnel for Shaker. Thousands of people on both sides of the Atlantic have recently called on senior UK and US politicians to break the deadlock over his case...Given the time involved, the lengthy spells in solitary confinement and the torture allegedly used against him, Shaker Aamer’s plight has been one of the worst of all the detainees held at Guantanamo. There are strong humanitarian and human rights grounds for the UK government to step up its efforts to secure a fair trial or a safe release for Shaker.
Aamer is originally from Saudi Arabia, but is married to a British citizen, and has four British children. He had been given permission to live in the UK indefinitely when he was arrested in 2001.

In November AI urged [JURIST report] the US and the UK to work towards the release [press release] of Aamer. Allen called on Foreign Secretary William Hague and US officials to give a specific timetable for Aamer's release. The Hague and the US have been in discussions over Aamer's release, but no formal indications of a release have been made. The UK agrees that if Aamer is released, they will be wiling to accept him, as they did with former detainee Binyam Mohammed [JURIST report]. Aamer is one of 16 Guantanamo Bay detainees for whom the UK government recently announced a settlement [JURIST report] agreement for allegations of torture. Those allegations prompted the UK to launch an investigation into torture allegations in May, as well as issue a ruling that state intelligence agencies cannot use secret evidence [JURIST reports] in their defense against abuse. Aamer has been described as an activist within Guantanamo, negotiating with US military officials over camp conditions and organizing hunger strikes when conditions did not improve.




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Turkish report finds Israel violated international law in Gaza flotilla raid
John Paul Putney on February 11, 2011 4:03 PM ET

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[JURIST] A Turkish government inquiry into the Israeli raid on a Gaza-bound flotilla [JURIST news archive] faulted Israeli soldiers Friday for violating international law. The panel's final report indicates at least two activists were killed before commandos boarded [AFP report] the Mavi Marmara, the largest ship in the flotilla. According to the report, an additional five persons were shot in the head from close range [Hurriyet Daily News report], including an injured Turkish-American who was shot execution-style in the back of the head. The Turkish report concludes that Israeli soldiers used excessive, indiscriminate and disproportionate force on unarmed civilians [AP report] as part of a full-fledged and well-planned attack. The report reasons that, because Israel's naval blockade is illegal, any action related to the blockade is likewise illegal, including the raid on the flotilla.

The findings directly contradict those of Israel's Turkel Commission [official website]. Last month, the Turkel Commission, a civilian committee assigned to investigate the May 31 flotilla raid, concluded that Israel did not violate international law [JURIST report]. In September, the UN Human Rights Council (UNHRC) [official website] released a report [text, PDF] condemning [JURIST report] Israel's interception of the Gaza-bound flotilla as a violation of international law. In August, the Turkish Foreign Ministry [official website] announced [JURIST report] that it would conduct an investigation into the flotilla incident. In July, an Israeli military probe [JURIST report] found insufficient intelligence and planning in the May 31 raid on the Gaza-bound flotilla, but also concluded that no punishments were necessary.




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China activist abused by authorities: rights groups
John Paul Putney on February 11, 2011 2:56 PM ET

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[JURIST] Prominent Chinese rights activist Chen Guangcheng [HRW backgrounder, JURIST news archive] and his wife have been "beaten senseless" by authorities, according to Friday reports from China Aid and Hong Kong-based Chinese Human Rights Defenders (CHRD) [advocacy websites]. Chen, who is blind, is currently under house arrest, and the beating may have been related to a video released [CHRD press release] on Wednesday by China Aid in which Chen talks about the frustrating circumstances surrounding his confinement. In the video, Chen described the condition of confinement, including 24-hour surveillance, cut phone lines and the inability to receive medical attention [China Aid press release]. Although Chen is well-known, visitors are routinely turned away, and the video is the first word from the activist since his release [CP report].

In September, Chen was released [JURIST report] from a Chinese prison after serving a four-year sentence [JURIST report] for damaging property and "organizing a mob to disturb traffic." In January 2007, a Chinese court rejected Chen's final appeal after a Chinese intermediate appellate court ordered a retrial [JURIST reports] in November 2006. Chen's trial was thrown into disarray in August 2006 when Chinese police arrested three of his lawyers [JURIST reports] who were accused of stealing a wallet. Two were later released, but Chen refused to accept court-appointed substitutes, insisting they were not familiar with his case.




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Egypt military pledges to lift emergency laws as Mubarak steps down
Drew Singer on February 11, 2011 1:35 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces pledged [statement] Friday to lift the country's emergency laws [text, in Arabic; JURIST news archive], which have been in place for nearly 30 years, as soon as circumstances improve. The announcement came shortly before President Hosni Mubarak [Al Jazeera profile] resigned, placing the council in charge of affairs of state. The statement, read on national television, also promised that "[t]he Egyptian armed forces are committed to undertaking the legitimate demands of the people and seek to achieve them through following up the implementation of these measures in a timely manner, precisely and firmly until the peaceful transition of power to reach a free society to which people aspire." The council also promised not to prosecute "honourable people who refused corruption and demanded for reform." The announcement of Mubarak's resignation [video] was made on state television by Vice President Omar Suleiman [Al Jazeera profile], following calls for Mubarak's resignation by demonstrators who have been protesting his government for nearly three weeks [Al Jazeera report].

On Tuesday, Suleiman said that Mubarak had approved the formation of a committee to oversee changes [JURIST report] to Egypt's constitution [text]. Egypt's government had reached out to various opposition leaders [JURIST report] since demonstrations erupted in the country, including the Muslim Brotherhood, the oldest and largest Islamic political group in the world and currently banned from Egypt. Cooperation in the constitutional review, the Brotherhood said, would only continue if the current regime continued to meet other demands. These demands included the removal of President Mubarak and the repeal of the emergency laws.




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Trial of former Liberia president halted pending appeal
LaToya Sawyer on February 11, 2011 1:04 PM ET

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[JURIST] Judges for the Special Court of Sierra Leone (SCSL) [official website] on Friday indefinitely postponed closing arguments in the trial of former Liberian president Charles Taylor [case materials; JURIST news archive] in order to allow the defense to appeal a prior decision. The SCSL will allow Taylor to appeal a ruling that denied the admission of a defense document due to untimely filing. Friday's court ruling [AP report] comes following a boycott by Taylor and his lawyers of this week's closing arguments [JURIST report] in protest of the court's decision to refuse to accept a written defense brief that was filed 20 days late. Taylor's lawyer, Courtenay Griffiths, said that he viewed the court's decision optimistically and expressed hope that the court's decision to hear the appeal is an indication that the remainder of the trial will be conducted in a reasonable manner [Reuters report]. Griffith also stated that the disputed document was not filed in a timely manner because the defense was waiting on the court to rule on eight legal matters before they could complete their brief. Taylor's trial, which has lasted nearly three years, will resume after the appeals chamber decides whether to accept the defense document.

Taylor is charged with 11 counts of war crimes and crimes against humanity and has denied all allegations [JURIST report] against him. Charges include [indictment, PDF] murder, rape, sexual slavery and acts of terrorism, all stemming from from a "campaign to terrorize the civilian population" of Sierra Leone. Taylor's defense lawyers, who began presenting their case [JURIST report] in July 2009, have claimed that he could not have commanded rebel forces in Sierra Leone while acting as the president of Liberia. His trial continued after the court denied his motion for acquittal [JURIST report] in May 2009. Prosecutors previously expressed concern that the defense's list of 256 witnesses could make the trial last up to four additional years [JURIST report].




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Malaysia court charges suspected Somali pirates
Andrea Bottorff on February 11, 2011 12:22 PM ET

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[JURIST] Seven suspected Somali pirates appeared Friday in Malaysian court charged with firearms offenses and, if convicted, they could face the death penalty. Malaysia is the first Asian country to take formal legal action [AFP report] against suspect pirates. Under the Malaysian Firearms (Increased Penalties) Act of 1971 [text, PDF], anyone who fires a gun with the intent to hurt another person and while committing a crime may be put to death. The suspects, who did not enter pleas, were arrested last month after allegedly firing at Malaysian authorities while hijacking [BBC report] a merchant ship in the Gulf of Aden. Three of the seven suspects are only 15 years old and will not face the death penalty because of their age. Magistrate Siti Shakirah Mohtarudin scheduled the trial [Bernama report] for March 15 in Kuala Lumpur.

Piracy in the Gulf of Aden and the Indian Ocean is an ongoing international concern, and several countries have started taking legal action against suspected Somali pirates [JURIST news archive]. In November, Germany's Hanseatic Higher Regional Court of Hamburg [official website, in German] commenced [JURIST report] the country's first piracy trial in 400 years against 10 accused Somali pirates. Weeks earlier, jury selection began [JURIST report] in the case of five Somali men accused of an April attack on the USS Nichols, which was deployed to combat piracy in waters off the eastern coast of Africa. The trial in the US District Court for the Eastern District of Virginia [official website] is the first US piracy trial in more than 100 years. In October, the UN called for nations to assist in conducting piracy trials [JURIST report]. Other countries that have attempted to prosecute suspected pirates include the Netherlands, Kenya, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Arizona governor countersues US government over immigration law
Andrea Bottorff on February 11, 2011 10:38 AM ET

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[JURIST] Arizona Governor Jan Brewer (R) [official website] announced Thursday that she and state Attorney General Tom Horne [official profile] had filed a counterclaim [summary, PDF] in the US District Court for the District of Arizona [official website] against the US government in the lawsuit challenging the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. The counterclaim contains five counts accusing the federal government of violating the Secure Fence Act of 2006 [text, PDF] by losing control of the border with Mexico, violating Article 4 [text] of the US Constitution by failing to protect Arizona from an "invasion" of illegal immigrants, failing to enforce federal immigration law 8 USC §1373 [text] requiring the government to respond to state inquiries about individuals' immigration status, refusing to reimburse the state costs of battling illegal immigration under the State Criminal Alien Assistance Program [text, PDF] and violating the Tenth Amendment [text] of the Constitution by infringing on state rights. Brewer said that the state has been collecting private donations [Arizona Republic report] to help fund the lawsuit.

In October, a federal judge denied [JURIST report] motions to dismiss a class action lawsuit [JURIST report] challenging the constitutionality of the immigration law. The class action joined two other lawsuits filed [JURIST report] earlier last year that also challenged the law. The US Department of Justice [official website] in July filed suit [JURIST report] against Brewer seeking to permanently enjoin the state's immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. It has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling.




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UK parliament rejects prisoner voting rights despite ECHR ruling
Carrie Schimizzi on February 11, 2011 9:20 AM ET

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[JURIST] The UK House of Commons voted Thursday to reject a controversial European Court of Human Rights (ECHR) [official websites] ruling [JURIST report] and continue preventing prisoners from voting in British elections. Voting to extend the ban [UKPA report] by an overwhelming 212-vote majority, MPs have now forced British Prime Minister David Cameron [official website], who supports the ban, to decide whether to ignore [WSJ report] the ECHR's ruling or risk lawsuits [Telegraph report] by prisoners over their lost rights. Some lawmakers have suggested meeting the minimum standards required by international law by restricting the right to vote to inmates serving sentences of less than four years, while others have demanded that the UK withdraw from ECHR membership entirely. The UK currently incorporates the European Convention on Human Rights [text, PDF] into its law, but the ECHR has the final interpretation.

Earlier this week, UK think tank Policy Exchange [think tank website] called [text, PDF] for the UK to withdraw from the ECHR [JURIST report] in favor of a domestic high court. The report, written by former government adviser Dr. Michael Pinto-Duschinsky, explains that the ECHR has gradually grown in power. It calls for the UK to try to negotiate reforms with the court to limit its jurisdiction, and, if unsuccessful, states "the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights in Strasbourg and establishing the Supreme Court in London as the final appellate court for human rights law." Some legal experts in the UK say that severing ties with the European court would harm its commitment [BBC report] to protecting human rights and to the Council of Europe and the EU [official websites]. The controversy over UK prisoner voting rights stems from a 2005 case filed by John Hirst, who had been sentenced to life in prison for killing his landlord. Hirst claimed he should be able to vote while in prison and the ECHR agreed, ruling [judgment; press release] that the Representation of the People Act of 1983 [text] breached Hirst's human rights.




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Canada high court rules government may withhold national security-related evidence
Daniel Makosky on February 11, 2011 7:41 AM ET

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[JURIST] The Supreme Court of Canada [official website] on Thursday upheld [judgment text] challenged aspects of the Canada Evidence Act [materials], ruling that national security considerations take precedence over criminal convictions. The court affirmed the constitutionality of a provision that vests the Federal Court [official website] with, and removes from trial judges, the authority to determine the national security implications of evidence that prosecutors seek to withhold. In reaching its conclusion, the court noted the balance that must be struck between ensuring security and a fair judicial system:
As we have stated, co-operative arrangements between the prosecution and the defence are to be encouraged, as they have the potential to greatly facilitate complex trials for all parties involved and to reduce the strain on judicial resources. However, the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information.
The case stems from the prosecutions of the "Toronto 18" [Toronto Star backgrounder; JURIST news archive], who were arrested in 2006 after police learned of their plans to bomb sites throughout Ontario using fertilizer explosives in response to Canada's military involvement in Afghanistan.

The final two members of the Toronto 18 were convicted in June, a month after accused group leader Fahim Ahmad switched his plea to guilty mid-trial [JURIST reports]. Last February, Toronto 18 member Shareef Abdelhaleem was convicted [JURIST report] after a Canadian judge found no evidence of entrapment. In January 2010, Amin Mohamed Durrani was released [JURIST report] after pleading guilty to participating in and assisting a terrorist group. Also in January, Zakaria Amara and Saad Gaya [JURIST op-ed] were sentenced [JURIST report] to life and 12 years in prison, respectively, for their roles in the plot. Seven others involved in the plot pleaded guilty, two were found guilty by a judge at trial and seven others had their charges dropped or stayed.




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Egypt military allowing prisoner abuses: HRW
Julia Zebley on February 10, 2011 12:35 PM ET

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[JURIST] The Egyptian military is improperly detaining protesters and allowing prisoner abuse [press release], including torture, according to a Wednesday report from Human Rights Watch (HRW) [advocacy website]. HRW, in conjunction with Front for the Defense of Egyptian Protesters (FDP) [advocacy website, in Arabic], has calculated at least 119 arbitrary detentions and five incidents of torture, providing detainee accounts [text]. The organizations contend that the military is targeting human rights activists, protesters and journalists:
Military police arrested at least 37 human rights defenders and activists since January 31 and held them from periods ranging from 12 to 48 hours. On the afternoon of February 3, military police, accompanied by a uniformed policeman and plainclothes security officers, raided the Hisham Mubarak Law Center (HMLC), a human rights organization, and arrested 28 Egyptian and international human rights researchers, lawyers, and journalists. The HMLC also houses the FDP, which provides legal support to arrested protesters and documents the violations against them.
UN High Commissioner for Human Rights Navi Pillay [official profile] condemned the arrests [HMLC press release] from the Hisham Mubarak Center for Law [advocacy website, in Arabic] has called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [JURIST report] who have been arrested. Pillay also suggested that the violence against protesters [JURIST report] had been planned, and urged the government to investigate. On January 29, the military took over policing duties from the Ministry of the Interior [official website], whose forces were also accused of arbitrary arrests and abuse. The military promised to not use force against protesters [AP report], a sign many took as the end of military support for President Hosni Mubarak [Al Jazeera profile] military support. A senior member of the the Muslim Brotherhood [official website] told Reuters [report] that they fear a military coup. Various media outlets expect President Hosni Mubarak will resign later Thursday.

Egyptian Vice President Omar Suleiman [Al Jazeera profile] stated Tuesday that President Mubarak approved the formation of a committee to oversee changes [JURIST report] to Egypt's constitution [text]. Egypt's government has reached out to various opposition leaders [JURIST report] since demonstrations erupted in the country, including the Muslim Brotherhood, the oldest and largest Islamic political group in the world and currently banned from Egypt. Cooperation in the constitutional review, the Brotherhood said, will only continue if the current regime continues to meet other demands. These demands include the removal of President Mubarak and the repeal of emergency laws that have been in place for more than thirty years.




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Pentagon reduces sentence for al Qaeda Guantanamo detainee
Daniel Richey on February 10, 2011 11:55 AM ET

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[JURIST] The Pentagon announced Wednesday that a senior Department of Defense (DOD) [official website] official has reduced the sentence of Ibrahim al Qosi [DOD materials; JURIST news archive], the former al Qaeda cook and accountant who pleaded guilty [JURIST report] before a military tribunal last July to crimes of conspiracy and supporting terrorism. His sentence reduced to just two years, al Qosi could return to his native Sudan as soon as summer of 2012, and he will serve the balance of his sentence in a minimum-security Guantanamo Bay facility until then. Unbeknownst to the 10-officer jury that sentenced him to 14 years last August, al Qosi had struck a secret plea deal [JURIST reports] with Pentagon officials that will remain sealed until his eventual release. Under the terms of the deal, the Convening Authority for Military Commissions (CAMC), which has final review authority over military tribunal sentences, agreed to cut al Qosi's jury sentence to the extent that it exceeded the bargained-for term. Senior CAMC overseer Bruce MacDonald [official profile] had the authority to reduce al Qosi's sentence further, but adhered to the two-year maximum term in the plea agreement.

Al Qosi, one of the first to be detained at Guantanamo Bay in the war on terror [JURIST news archive], has been in US custody for nine years. His July sentencing marked the fourth time a Guantanamo detainee had been convicted by a military tribunal since the detention center opened in 2002 and the first time a captive had been convicted since the Obama administration ordered the facility shut down [JURIST report] in 2009. In December 2009, a military judge ruled that the US government could partially amend the charges [JURIST report] against al Qosi by changing his jurisdictional basis but could not include four additional years of alleged activities under the charges. In October 2009, military judges granted continuances [JURIST report] for prosecutors in the case against al Qosi. At the time, it was expected that the continuances would make way for a decision on whether to hold the remaining Guantanamo detainee proceedings in civilian or military court.




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Iran opposition leader under house arrest after calling for Egypt-style protests
Sarah Paulsworth on February 10, 2011 9:23 AM ET

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[JURIST] Iranian opposition leader Mehdi Karroubi [NYT profile; JURIST news archive] has been placed under house arrest [Saham News report, in Persian], according to his website Saham News [website, in Persian]. On Thursday morning, security forces reportedly took control of the area outside of Karroubi's residence and have barred all family members, except his wife, from entering. The report indicates that the arrest is related to calls by Karroubi and fellow opposition leader Mir-Hossein Mousavi [BBC profile; JURIST news archives] for rallies in support of the recent political reform movements in Tunisia and Egypt [CFR backgrounder]. Karroubi and Mousavi sought permission [RFE/RL report] from the government to hold such a rally on Monday, but State Prosecutor Gholam Hossein Mohseni Ejehi rejected the request [AP report] and warned that there would be serious consequences if the rally went ahead unsanctioned. In lieu of attending the opposition rally, Iran's government is encouraging citizens to attend a government-sanctioned rally [ISNA report, in Persian] on February 11 to commemorate the 32nd anniversary of the Islamic Revolution.

Last month, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders for political unrest that took place after the country's 2009 presidential election [JURIST news archive]. Dolatabadi threatened to prosecute [NYT report] Mousavi and Karroubi and former Iranian president Mohammad Khatami [BBC profile]. Mousavi and the other leaders called for continuing protests [JURIST report] to oppose the results of the 2009 presidential election, arguing that it was fraudulent. The three leaders would join a long line of individuals detained or already prosecuted for their roles during the election protests. In September, Shiva Nazar Ahari, a journalist arrested after the 2009 elections, was sentenced to six years in prison [JURIST report] for charges including "warring against God" and distributing anti-government propaganda. Also in September, Nasrin Sotoudeh, a prominent Iranian human rights lawyer known for representing political activists following the 2009 election, was detained for allegedly spreading propaganda and colluding against national security [JURIST report]. In August, an Iranian court sentenced Qorban Behzadianejad, Mousavi's campaign manager, to five years in prison [JURIST report]. The Iranian government detained hundreds of protesters and sentenced several to death [JURIST report]. Khamenei pardoned or commuted the sentences of 81 protesters [JURIST report] in June.




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Croatia, Serbia seek extradition of war crimes suspect
Ann Riley on February 10, 2011 8:02 AM ET

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[JURIST] The Croatian Ministry of Justice [official website, in Croatian] on Wednesday asked France to extradite [Hrvatska report, in Croatian] former Serb paramilitary fighter Milorad Momic, according to a report by state television. Momic, who has allegedly been living under a false name in France, was arrested last week in Grenoble under an international arrest warrant [JURIST report]. An alleged former member of the Serbian paramilitary group known as the Scorpions [JURIST news archive], Momic is charged [AFP report] in a Vukovar court for the murder of one Croat citizen and the physical intimidation of others. A spokesman for the court claims that Momic was a citizen of Croatia in September 1991, when the crimes were committed in the village of Berak, near Vukovar. In addition to Croatia, Momic's native Serbia also seeks his extradition to try him for crimes against humanity. Serbian officials suspect Momic participated in the 1995 Srebrenica massacre [JURIST news archive] in Bosnia, where a total of 8,000 Bosnian Muslims were killed. Serbian prosecutors believe that Momic is part of a Scorpion group that videotaped the murder [JURIST report] of Bosnian Muslims near Srebrenica. The graphic 1995 video [JURIST video; WARNING: this video may be disturbing to some viewers] first surfaced in 2005 during the trial of Slobodan Milosevic [JURIST news archive] by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website].

Serbia has undertaken an ongoing effort to apprehend those responsible for the atrocities that occurred in the region during the 1992-95 Bosnian civil war [JURIST news archive]. Suspected Bosnia and Herzegovina (BiH) war criminal Dragan Crnogorac was arrested [JURIST report] in November in connection with the Srebrenica massacre. In August, the Court of Bosnia and Herzegovina [official website] issued genocide charges [JURIST report] against four former Bosnian Serb soldiers, accusing them of participating in the murder of more than 800 Bosnian Muslims during the massacre. In April, the court convicted [JURIST report] two men of genocide, Radomir Vukovic and Zoran Tomic, for their roles in the massacre and sentenced each to 31 years imprisonment. The BiH war crimes court was set up in 2005 to relieve the caseload of the ICTY and is authorized to try lower-level war crime suspects.




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Virginia AG petitions Supreme Court for expedited health care ruling
Hillary Stemple on February 9, 2011 2:07 PM ET

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[JURIST] Virginia Attorney General Kenneth Cuccinelli [official website] on Tuesday filed a petition for a writ of certiorari [text, PDF] with the US Supreme Court [official website; JURIST news archive] asking the court to rule on the constitutionality of the health care reform law [HR 3590 text; JURIST news archive] on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. Cuccinelli announced last week [press release; JURIST report] that he was going to petition the court for an expedited review due to the far-reaching public policy implications inherent in the implementation of the legislation and the potential cost to the states as uncertainty surrounding the legislation's constitutionality remains. In December, a judge for the US District Court for the Eastern District of Virginia [official website] struck down [opinion, PDF; JURIST report] the individual mandate portion of the Patient Protection and Affordable Care Act (PPACA), but left the remainder of the bill intact. Cuccinelli is asking the court to rule on whether the lower court erred when it found that the individual mandate was a violation of Congress' powers under the Commerce Clause [Cornell LII backgrounder] of the Constitution and whether it erred in determining that the individual mandate provision of the law was severable from the remainder of the act, leaving the majority of the provision of the PPACA in place. The US Department of Justice [official website] has indicated that they believe the challenge should be heard by the court of appeals [AP report] before being considered by the Supreme Court. The court of appeals is scheduled to hear arguments in Commonwealth v. Sebelius [materials] in May.

There are currently cases in 28 states challenging the provisions of the PPACA and the lower court rulings on issues surrounding the legislation have been mixed. Earlier this month, a federal judge in Mississippi dismissed a lawsuit challenging the law [opinion, PDF; JURIST report] on the basis that the plaintiffs lacked standing because their allegations were insufficient to show "certainly impending" injury. In January, a judge for the US District Court for the Northern District of Florida [official website] struck down [opinion, PDF; JURIST report] the law as an unconstitutional overreaching of Congress' Commerce Clause power. The entire law was voided in that case, as the judge found the individual insurance mandate to be unserverable. That decision is expected to be appealed to the US Court of Appeals for the Eleventh Circuit [official website]. Earlier in January, 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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Federal judge finds landmark cross restoration grant constitutional
Daniel Makosky on February 9, 2011 1:51 PM ET

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[JURIST] A judge in the US District Court for the Central District of Illinois [official website] on Tuesday ruled that the state did not unconstitutionally advocate religion by financially contributing to the restoration of the Bald Knob Cross of Peace [official website]. The court rejected [AP report] an argument that the $20,000 grant constituted a legislative earmark, thereby violating the Establishment Clause of the First Amendment [text] by directing state funds to support religion. Judge Michael McCuskey held that the Illinois Department of Commerce and Economic Opportunity [official website] may allocate its funds as it sees fit, and that the grant in question represents permissible discretionary spending by the executive branch. The challenge was initially brought in August by Rob Sherman, who has indicated on his website [advocacy website] that he intends to appeal the "bizarre" decision to the US Court of Appeals for the Seventh Circuit [official website].

In October, the Seventh Circuit rejected [JURIST report] Sherman's challenge to the constitutionality of an Illinois statute that mandated a daily moment of silence in public schools. The court reversed an April 2009 ruling [JURIST report] that the Illinois Reflection and Silent Prayer Act [text] is an unconstitutional endorsement of religion in public schools. The appellate court instead found that the statute had a secular legislative purpose that neither advanced nor inhibited religion.




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Egypt VP announces committee to reform constitution
Sarah Posner on February 9, 2011 12:57 PM ET

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[JURIST] Egyptian Vice President Omar Suleiman [Al Jazeera profile] stated Tuesday that President Hosni Mubarak [Al Jazeera profile] approved the formation of a committee to oversee changes to Egypt's constitution [text]. Suleiman announced Egypt's timetable for a peaceful transition of power and discussions that have taken place with opposition party representatives. The various participants involved in discussions with Suleiman [WP text of statement] expressed their "appreciation and respect" for the movement that took place beginning on January 25. Discussion participants expressed the need to address the lack of security in Egypt, disturbances and obstruction of public services, the suspension of education, delays in delivery of essential goods, losses of the Egyptian economy and attempts of foreign entities to intervene in Egyptian affairs. Suleiman indicated that a committee of judicial and political leaders from the government and from opposition parties will suggest constitutional and legislative amendments to address the current state of affairs in Egypt. The proposal period is expected to be completed by early March.

Egypt's government has reached out [JURIST report] to various opposition leaders since demonstrations erupted in the country, including the Muslim Brotherhood [official website], the oldest and largest Islamic political group in the world and currently banned from Egypt. Cooperation in the constitutional review, the Brotherhood said, will only continue if the current regime continues to meet other demands. These demands include the removal of Egyptian President Hosni Mubarak and the repeal of emergency laws that have been in place for more than thirty years. UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [JURIST report] who have been arrested and for the government to investigate whether the violence against protesters [JURIST report] has been planned. Pillay condemned the arrest last Thursday of 20 activists and lawyers [HMLC news release] from the Hisham Mubarak Law Centre [advocacy website, in Arabic] in Cairo.




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Egypt-inspired protestors face violent crackdowns by Arab governments: HRW
Aman Kakar on February 9, 2011 12:49 PM ET

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[JURIST] Human Rights Watch (HRW) [official website] reported [press release] on Tuesday that Arab governments are using violence to crack down on protests inspired by the unrest in Egypt. According to the report, public gatherings in Saudi Arabia, Sudan, Syria, United Arab Emirates, West Bank and Yemen have encountered force from security officials. In Ramallah, Palestine peaceful demonstrators were punched and kicked by the "special forces." Two journalists, a HRW research assistant and organizers of the demonstrations in Ramallah have been detained. In Syria, police forces stood by as 20 people in civilian clothing beat demonstrators that had assembled to hold a candlelight vigil for Egyptian demonstrators. On February 4, police detained Ghassan al-Najjar, the leader of the Islamic Democratic Current, after he issued calls for Syrians to demonstrate for more freedom in their country. In Saudi Arabia, citizens canceled their plans for a peaceful sit-in to urge reform and better jobs after they were summoned by Interior Ministry officials. Sudanese authorities have also targeted journalists and censored newspapers covering protests. On February 2, more than a dozen of the staff of al-Maidan, a communist newspaper, were arrested. HRW also reports of an unconfirmed death of a student, Mohammed Abderahman, who was part of a protest in late January which was suppressed by excessive force. In Yemen, 6 people were injured and 28 arrested, including journalists and human rights activists, according to the Yemeni Observatory of Human Rights [official website; in Arabic]. In Bahrain, the government shut down a Facebook page calling for protests.

The violent response to the protests comes at a time of uncertainty in the region. Demonstrations against the 30-year reign of Egyptian President Hosni Mubarak [Al Jazeera profile] began last week [JURIST report] and have become more violent since Mubarak announced Tuesday that although he will not seek re-election [transcript, text], he does not plan on stepping down nor leaving Egypt. Some reports allege as many as 300 deaths and 1,500 injuries [Ria Novosti report] as a result of the protests. Nobel Peace Prize laureate and Egyptian opposition leader Mohamed ElBaradei [Nobel Prize profile] last week expressed his willingness to lead a transitional government [BBC report]. He has returned to Egypt and is reported to have joined the protests. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].




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UK Supreme Court president warns funding method threatens judicial independence
Matt Glenn on February 9, 2011 10:11 AM ET

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[JURIST] UK Supreme Court [official website] President Nicholas Phillips [official profile] warned in a speech [text, PDF; UCL materials] Tuesday that the Supreme Court's reliance on the Ministry of Justice [official website] for funding threatens the court's independence. Phillips explained that unexpectedly low contributions from civil courts coupled with the economic crisis had forced the Supreme Court to turn to the Lord Chancellor, a member of parliament, for funding. One method of funding discussed and ultimately dismissed before the court opened in 2009 [JURIST report] was submission of a budget directly to the treasury. Phillips endorsed this approach. He told the audience:
My conclusion is that our present funding arrangements do not satisfactorily guarantee our institutional independence. We are, in reality, dependent each year upon what we can persuade the Ministry of Justice of England and Wales to give us by way of "contribution". This is not a satisfactory situation for the Supreme Court of the United Kingdom. It is already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.
Phillips also said he was concerned by comments from members of parliament criticizing judicial review of parliamentary and executive actions. Lord Chancellor and Secretary of State for Justice Kenneth Clarke [official profile] dismissed Phillips' concerns [BBC report, audio] saying that the Supreme Court is fully independent in judicial matters, but does not have the right to determine its own budget. Phillips "can order me through his court to do whatever he likes, to obey the law," Clarke said, " [but] he can';t tell me how much he wants to spend and be free of the [budget] cuts. In that respect I'm afraid inevitably he's going to be subject to the same public expenditure negotiations as everybody else."

The Supreme Court was created to emphasize the split between the judicial and legislative branches of government. The court has said that "it will transform the public's awareness of justice at the highest level" and a "fundamental aim is to be as transparent as possible." The court is the first in the UK to record proceedings [JURIST report] and make them available to the media. In most cases, the court stands as the final court of appeal for England, Wales, Scotland and Northern Ireland. Additionally, the justices of the Supreme Court are no longer able to sit or vote with the House of Lords as they had done in their capacity as Law Lords. The Law Lords issued their final ruling [JURIST report] in July 2009.




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House fails to pass Patriot Act extension
Julia Zebley on February 9, 2011 7:52 AM ET

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[JURIST] The US House of Representatives [official website] on Tuesday defeated a bill [HR 514 text] to renew three provisions of the USA Patriot Act [text; JURIST news archive]. The vote was 277 to 148 [roll call], falling short of the two-thirds majority required for the "suspension of the rules" procedure. The provisions in question, set to expire on February 28, create the authority for roving surveillance, including wire-taps and cell phone monitoring; compel production of business records and "other tangible things" under section 215 of the Act; and allow the US to target non-US persons "who engage in international terrorism or activities in preparation therefor, but are not necessarily associated with an identified terrorist group," under the "lone wolf" amendment, section 6001. Earlier this month, the Obama administration released a Statement of Administration Policy [text, PDF] vying for a three-year renewal of the features, but expressed support for the now-failed House bill. A major opponent of the bill, the American Civil Liberties Union (ACLU) [advocacy website], was pleased with the vote [press release], with Laura Murphy, director of the ACLU's Washington Legislative Office stating:
The House should be commended for refusing to rubberstamp the continuation of these provisions. For the nearly 10 years it has been law, the over-reaching Patriot Act has been abused by law enforcement to violate innocent Americans' privacy. We urge both the House and the Senate to keep up this momentum and continue to fight the extension of these provisions that put Americans' privacy at risk.
Republican lawmakers are expected to bring the bill up again for a vote by simple majority before the provisions expire.

In September 2009, the Obama administration asked the Senate Judiciary Committee to extend the Patriot Act, which it did in February 2010 [JURIST reports]. The US Court of Appeals for the Ninth Circuit [official website] dismissed [JURIST report] a constitutional challenge to the Patriot Act in December 2009 due to lack of standing. The US District Court for the District of Oregon [official website] had previously ruled that certain provisions of the act were unconstitutional [JURIST report]. The Patriot Act was passed in 2001, on the heels of the 9/11 attacks, greatly expanding US law enforcement's powers of surveillance and discretion when conducting terrorism investigations, and the US Government's ability to regulate foreign individuals' and immigrants' financial transactions.




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Syria lifts ban on social media sites Facebook, YouTube
John Paul Putney on February 8, 2011 2:17 PM ET

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[JURIST] Syrian Internet users reported on Tuesday that social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] are accessible without proxy servers or VPNs. Syria appears to be lifting the ban imposed in 2007 as a concession to avoid popular upheaval [DP report] in Syria. Because both Facebook and YouTube are routinely accessed by Syrians through international proxy servers, the concession may have limited impact [AP report]. The move follows a recent interview in which President Bashar Al-Assad indicated he would push for political reforms including municipal elections and a new media law [CP report]. Other websites, such as Amazon and Wikipedia, remain blocked for the time being.

Several countries have banned and unbanned popular media sites in recent years. In November, Turkish authorities lifted a nearly three-year ban [JURIST report] on YouTube after disputed videos that allegedly insulted Turkey's founder, Mustafa Kemal Ataturk [Turkish News profile], were removed from the site's content. In July, a Russian court made public a ruling banning access to five websites [JURIST report], including YouTube, for extremist elements. In June, a Pakistani court reimposed a ban on YouTube [JURIST report] after content deemed offensive to Muslims resurfaced on the website when a previous ban was lifted last month. In May, the Pakistan Telecommunications Authority [official website] ordered Internet service providers to block Facebook [JURIST report] in response to a competition created by a group of the website's members entitled "Draw Muhammad Day."




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Hungary agrees to change controversial media law
Sarah Posner on February 8, 2011 1:19 PM ET

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[JURIST] Hungary agreed Monday to change its controversial media law [text, PDF] following negotiations between Hungarian and EU representatives. The new law, which controls private television and radio broadcasters, newspapers, and online news sites, has been criticized as being too restrictive of freedom of expression. Last month, European Commission Vice President Neelie Kroes challenged the legality of the act [statement, text] under EU law, specifically provisions that apply to media originating in countries other than Hungary, regulate media beyond simple broadcasting and require media outlets to register with a new authority. Hungary's Communication Minister Zoltan Kovacs said that officials will address the problems noted by the European Commission and change the text to make the media law more clear and precise. The Hungarian government plans to revise the text and submit changes [DW report] to the law on Thursday.

Hungary's parliament passed the new media law last December amid protests and criticism. The law took effect on January 1, 2011, the same day the Hungarian government assumed the presidency of the EU. Despite criticism, the Hungarian government initially defended [JURIST report] the law, which created the National Media and Communications Authority (NMHH) [official website, in Hungarian]. Under the new law, the NMHH 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 law has been harshly criticized [Daily Mail report] by members of the media, as well as other European governments, as being too restrictive of free expression.




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Iraq government torturing detainees in secret prisons: Amnesty
Maureen Cosgrove on February 8, 2011 1:11 PM ET

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[JURIST] The Iraqi government is operating secret prisons, and suspects held in Iraqi custody have been systematically tortured since before the 2003 US invasion, according to a Tuesday report [text, PDF] from Amnesty International (AI) [advocacy website]. The report, "Broken Bodies, Tortured Minds: Abuse and Neglect of Detainees in Iraq," alleges that Iraqi and US forces have detained tens of thousands of people without trials, access to lawyers or opportunity to challenge the legality of their detention. The Central Criminal Court of Iraq (CCCI) [JURIST news archive], according to the report, regularly convicts defendants based on confessions extracted with the use of torture and ill-treatment. AI claims that, upon release, prisoners often leave the detention centers with serious physiological and psychological injury:
After US forces handed over tens of thousands of prisoners to Iraqi custody between early 2009 and July 2010 without any guarantees that they will be protected, there is every likelihood that torture and ill-treatment will remain widespread. Such abuses have a devastating impact on the victims not just when they are being tortured or ill-treated, but often for years afterwards or even for the rest of their lives. Urgent action is needed to end the pattern of abuse and to help the victims and their families.
Overcrowding and lack of medical treatment also contribute to the poor conditions enumerated in the report. Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic] denied similar claims [AFP report] made by Human Rights Watch (HRW) [advocacy website] earlier this week.

Numerous human rights groups have responded to reports of detainee torture in Iraq. In September, AI published a report [text, PDF] alleging that the Iraqi government is unlawfully detaining and torturing [press release; JURIST report] thousands of detainees. In June, UN Special Representative to Iraq Ad Melkert urged the Iraqi government [JURIST report] to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Melkert stated that Iraq had made several advances in recognizing human rights violations, but the government's policy implementation still faces several obstacles. The convention was adopted by the UN in 1984 and has been ratified by 147 countries. Iraq remains one of 45 member-countries that have yet to ratify the treaty. In April, HRW reported on the repeated torture [JURIST report] of Iraqi detainees in a secret prison in Baghdad. HRW reported that detainees held at the secret Muthanna facility, run by Iraqi authorities, were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks and sodomized during torture sessions that detainees faced every three to four days.




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Pakistan investigators accuse Musharraf in Bhutto assassination
Ashley Hileman on February 8, 2011 12:48 PM ET

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[JURIST] The Federal Investigation Agency of Pakistan [official website] on Monday named former president Pervez Musharraf [BBC profile; JURIST news archive] as an accused in the assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. Musharraf's name was included on an interim criminal charge-sheet [BBC report] after investigations revealed that he appointed and allegedly gave orders to the police officers accused of failing to protect Bhutto on the day she was assassinated. Specifically, the prosecution document alleges that Musharraf ordered the officers to remove a security detail for Bhutto prior to her departure and that he later ordered the same officers to hose down the scene of the assassination. In December, a Pakistani Anti-Terrorism Court (ATC) issued warrants [JURIST report] for the arrest of Syed Saud Aziz and Khurram Shahzad, the two accused of carrying out Musharraf's orders. Information gathered during questioning of these officers influenced the decision to include Musharraf's name on the charge-sheet, which does not act as a formal indictment.

In January, the governor of Pakistan's Punjab province, Salman Taseer, was assassinated [JURIST report] by one of his own security guards, apparently due to his opposition to Pakistan's blasphemy law [text; JURIST news archive]. Taseer, a senior member of the Pakistan People's Party (PPP) [official website], was shot 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. This was the most high-profile assassination since that of Bhutto in 2007 and again involved issues of security. The Pakistani government and police forces have been criticized for their part in Bhutto's assassination. In April 2010, an independent UN commission formed to investigate the assassination, issued a report holding the Pakistani government and police forces responsible [JURIST report] for failing to provide adequate security. The report also accused the government of failing to launch a proper investigation into the assassination.




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Closing arguments begin in trial of former Liberian president Taylor
Zach Zagger on February 8, 2011 11:56 AM ET

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[JURIST] Closing arguments began Tuesday in the trial of former Liberian president Charles Taylor [BBC profile; JURIST news archive] on charges of war crimes and crimes against humanity, despite Taylor's absence from the courtroom. UN prosecutors said the trial will proceed [Telegraph report] despite Taylor and his lawyer, Courtenay Griffiths, leaving the courtroom at the beginning of the prosecution's closing arguments. Griffiths called the tribunal a "farce" [BBC report] after it refused to accept the defense's written brief because it was 20 days past the deadline. He addressed the court saying, "[o]ur very presence in court is incompatible with our duty to protect Mr. Taylor's interest. And it is our intention ... to leave court at this point." Griffiths argues that the court will not have the foundational information from his brief, but asserts that they are not withdrawing entirely from the court. They only want to wait for an appeals court to decide whether the court should accept the brief before reaching a verdict.

Taylor's charges [indictment, PDF], including murder, rape, sexual slavery and acts of terrorism, stem from from a "campaign to terrorize the civilian population" of Sierra Leone. Taylor's defense lawyers opened their case [JURIST report] in July 2009 and have claimed that he could not have commanded rebel forces in Sierra Leone while acting as the president of Liberia. His trial continued after the court denied his motion for acquittal [JURIST report] in May 2009. Prosecutors previously expressed concern that the defense's list of 256 witnesses could make the trial last up to four additional years [JURIST report].




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Italy court orders release of former Guantanamo detainee
Matt Glenn on February 8, 2011 9:44 AM ET

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[JURIST] A Milan court on Monday ordered Italian authorities to release former Guantanamo Bay [JURIST news archive] detainee Abdel Ben Mabrouk [NYT materials], finding that the eight years Mabrouk served at Guantanamo and the year he spent in an Italian prison were sufficient punishment. The judge handed Mabrouk a two-year suspended sentence [AKI report] for terrorist association based on recommendations from Mabrouk's lawyer and prosecutor Armando Spataro. The fact that the Guantanamo Bay detention facility is illegal under Italian law played a role in the prosecution's agreement to seek a lenient sentence [CP report]. The US government transferred Mabrouk [JURIST report] from Guantanamo Bay to Italy in 2009 along with fellow Tunisian Mohamed Ben Riadh Nasri [NYT materials], whom an Italian court sentenced to six years in prison [JURIST report] last week, as part of the US government's attempt to shut down the detention center. It is unclear where Mabrouk will go after being released, especially given the political situation in his home country.

The continued operation of Guantanamo Bay remains controversial. Last month, Human Rights Watch (HRW) [advocacy website] criticized US President Barack Obama [JURIST report] for failing to shut down the facility. Obama's stated desire to close Guantanamo has faced heavy opposition in Congress. In early January, 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. 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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Bank of America settles excessive overdraft fee lawsuit
Aman Kakar on February 8, 2011 8:02 AM ET

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[JURIST] Bank of America (BOA) [corporate website] has reached a $410 million settlement in a class action suit accusing the bank of excessive overdraft fees, according to documents submitted Friday in the US District Court Southern District of Florida [official website]. BOA is among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009. In their amended complaint [text, PDF], the plaintiffs claimed that BOA's practices were deceptive in that they did not reasonably notify customers that they had the option of opting out of the overdraft scheme and declining transactions. The complaint also alleged that BOA's excessive fees disproportionately effect low-income customers. A judge must now approve the settlement agreement.

BOA has recently been the target of several lawsuits. In January, plaintiffs filed a lawsuit [JURIST report] against Countrywide Financial Corporation [NYT backgrounder], a BOA subsidiary, in New York State Supreme Court [official website] alleging widespread fraud that resulted in substantial financial losses. 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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Former Pennsylvania judge goes on trial over juvenile sentencing scandal
Megan McKee on February 7, 2011 3:04 PM ET

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[JURIST] Prosecutors and defense attorneys in the US District Court for the Middle District of Pennsylvania [official website] on Monday began selecting the jury in the corruption trial of former Pennsylvania judge Mark Ciavarella for his role in a juvenile sentencing scandal [JURIST news archive]. Ciavarella, a former judge in Pennsylvania's Luzerne County Court of Common Pleas, is accused of receiving kickbacks for sentencing teenagers to two private juvenile detention facilities in which they had a financial interest. Ciavarella is charged [UPI report] with 39 counts of honest services fraud, racketeering, money laundering, wire fraud, bribery, extortion and tax evasion. Opening statements are scheduled to begin Tuesday.

In July, Judge Edwin Kosik accepted [JURIST report] a plea agreement [text, PDF] with former Pennsylvania judge Michael Conahan for his involvement in the juvenile sentencing scandal. Conahan now faces a 20-year prison sentence, a fine of up to $250,000 and disbarment. Kosik had previously rejected [JURIST report] joint plea agreements [text, PDF] from Conahan and Ciavarella, finding that plea bargaining to honest services fraud and tax evasion charges demonstrated that the men did not accept responsibility and that the disbarment and 87-month prison sentences were too lenient [JURIST op-ed]. In October 2009, the Supreme Court of Pennsylvania [official website] overturned about 6,500 convictions [JURIST report] handed down by Ciavarella between 2003 and 2008, but gave prosecutors permission to seek retrial of more than 100 youths who were still under court supervision. Conahan and Ciavarella were indicted in September of 2009, following a withdrawal of the guilty pleas they entered [JURIST reports] in February 2009.




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UK did not pressure Scotland to release Lockerbie bomber: report
Erin Bock on February 7, 2011 2:49 PM ET

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[JURIST] The UK's top civil servant reported [text, PDF] Monday that the previous administration "[did] all it could" to facilitate a Libyan appeal to allow for the release of convicted Lockerbie [BBC backgrounder] bomber Abdelbaset Ali Mohmet al-Megrahi [BBC profile; JURIST news archive] from a Scottish prison, but that the decision-making power was solely within the province of the Scottish Government. Megrahi, a former Libyan intelligence official, was released from custody [JURIST report] in August 2009 on compassionate grounds after being diagnosed with terminal cancer and subsequently returned to his native Libya. Libyan officials began lobbying for Megrahi's release after his diagnosis in September 2008, stating that allowing Megrahi to die in Scottish custody would be the equivalent of a death sentence. The officials threatened "severe ramifications to UK interests" if Megrahi was not released. Prime Minister David Cameron [official profile; JURIST news archive] commissioned Cabinet Secretary Gus O'Donnell [BBC profile] to review government documents and correspondence to determine the previous UK government's involvement in Megrahi's release. O'Donnell determined that there was no evidence the previous government "pressured or lobbied" the Scottish government to transfer or release Megrahi, but also stated that the previous government had an "underlying desire" of which the Scottish Government was aware to have Megrahi released.
Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr. Megrahi's release by the Scottish government on compassionate grounds. When the matter came to the then Prime Minister ... he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr. Megrahi's release on cmpassionate grounds was a decision that Scottish Ministers alone could - and did - make.
This "underlying desire" was fueled by a policy adopted after Megrahi's diagnosis "based upon an assessment that UK interests would be damaged if Mr. Megrahi were to die in a UK jail." The motivating factor was "normalizing relations" with Libya and avoiding harm "to UK nationals, to British interests and to cooperation on security issues." One British interest that weighed heavily on this policy was British Petroleum (BP) [corporate website; JURIST news archive], which was engaged in contract negotiations to explore drilling in Libya and was suffering "significant financial loss" while these contracts remained unsigned. Doctors predicted Megrahi had only three months to live when released, but he is still living today in his native Libya.

Last August, the Obama administration urged Libyan authorities to return Megrahi to a Scottish prison [JURIST report] to serve the remainder of his sentence. Also in August, the opposition Scottish Labour Party [party website] called for the publication of all medical evidence [JURIST report] related to Megrahi's release. In July, US lawmakers called for an investigation [JURIST report] into the role that BP may have played in Megrahi's release. Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland that killed all 259 on board [memorial website] including 180 Americans.




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UN rights experts call for end to female genital mutilation
LaToya Sawyer on February 7, 2011 1:56 PM ET

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[JURIST] UN rights experts called Monday for all global communities to participate in the effort to end [press release] female genital mutilation (FGM) [WHO backgrounder; JURIST news archive]. The statement, marking the International Day of Zero Tolerance for Genital Mutilation and Cutting, encourages abandonment of the practice that has long-term health effects and is, according to the UN officials, a clear violation of girls' and women's fundamental human rights. The officials, UN Population Fund (UNFPA) Executive Director, Dr. Babatunde Osotimehin, and UN Children's Fund (UNICEF) Executive Director, Anthony Lake, head a program formed by the two organizations that is designed to eliminate this practice. The goal of the program, started in 2008, is to encourage voluntary abandonment of practicing FGM and avoid condemnation of nations involved in that participate in this cultural practice. The officials said the joint program was making significant progress in many nations around the world:
All girls deserve to grow up free from harmful practices that endanger their health and well-being. ... Governments, non-governmental organizations, religious leaders and community groups are making real progress. Three years into the programme, more than 6,000 communities in Ethiopia, Egypt, Kenya, Senegal, Burkina Faso, the Gambia, Guinea and Somalia have already abandoned the practice. Social norms and cultural practices are changing, and communities are uniting to protect the rights of girls.
To further promote the effort to preserve women's and girls' human rights, the program will be represented in an event, organized by the Inter-African Committee (IAC) [official website], called "Building Bridges between Europe and Africa." The event will include representatives of governments in Africa, Europe and Latin America, several UN agencies, other international groups and women who have undergone FGM.

As many as 140 million women and girls worldwide have undergone some form of FGM, which is defined by the World Health Organization (WHO) [official website] as "all procedures involving partial or total removal of the external female genitalia or injury to the female genital organs for nonmedical reasons." Efforts in several countries, however, have sought to eliminate or reduce the practice. In 2009, Uganda unanimously outlawed FGM [JURIST report] and imposed harsh penalties anyone who conducts the procedure to face imprisonment. Last year, Human Rights Watch (HRW) [advocacy website] called on the government of Iraqi Kurdistan [JURIST report] to outlaw female genital mutilation and to develop a comprehensive legislative plan to reduce FGM in the region.




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Sudan president accepts South's vote for independence
Ann Riley on February 7, 2011 1:53 PM ET

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[JURIST] A total of 98.83 percent [SSRC materials] of nearly 3.8 million southern Sudanese voters voted in favor of secession in last month's Southern Sudan's Independence Referendum, according to the final polling results released Monday by the Southern Sudan Referendum Commission [official website]. After the official results were announced in the northern capital of Khartoum, Sudanese President Omar al-Bashir [BBC profile; JURIST news archive], who campaigned against secession, issued a formal decree [NYT report] accepting the result of the referendum. In an address [Reuters report] on state television, al-Bashir said that he welcomed the results because they represent the will of the southern people. Experts had feared that the ruling National Congress Party (NCP) [party website] of al-Bashir 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. Last month, preliminary results revealed [JURIST report] an overwhelming majority of voters voted in favor of secession. With the South's secession from the North, the world's 193rd country will be announced on July 9 in Juba, the capital of Southern Sudan.

In September, 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. According to the 2005 Comprehensive Peace Agreement (CPA) [UN report], the 10 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.




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Dutch politician's trial for anti-Islamic statements begins before new judges
Ashley Hileman on February 7, 2011 1:09 PM ET

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[JURIST] The Amsterdam District Court began the new trial of right-wing Dutch politician Geert Wilders [personal website; JURIST news archive] Monday after replacing the previous panel of judges. The replacement panel will now hear the case [BBC report] against Wilders, which stems from charges that he made inflammatory statements against Islam, calling the religion "fascist" and comparing the Koran to Hitler's book Mein Kampf. An independent appeals panel dismissed the original judges [JURIST report] in October amidst allegations of bias against Wilders that his lawyer argued was illustrated by their refusal to allow the defense to recall a witness. Wilders' initial trial was scheduled to conclude in November, and he intends to call witnesses and present evidence that was barred during that trial. If convicted on the charges, he faces fines or a maximum sentence of one year in prison.

Prior to their dismissal, the panel members heard the prosecution's case, which culminated in a request that Wilders be acquitted on all charges [JURIST report]. The prosecutors based their request on determinations that the politician's statements were directed at Islam and not Muslims themselves and additionally, that the evidence failed to establish that he intended to incite violence. The presentment of the prosecution's case followed an order from a panel of Dutch judges to resume the trial after rejecting claims of judicial bias [JURIST report]. The trial had previously been suspended [JURIST report] after a lawyer representing Wilders accused one of the judges of making a statement which cast him in an unfavorable light to the jury. Prior to the start of his trial, Wilders announced [JURIST report] that the Dutch government would attempt to ban the burqa [JURIST news archive] and other full Islamic veils to secure the support of Wilders' Freedom Party [party website, in Dutch] in forming a coalition government.




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UK urged to withdraw from Europe rights court
Zach Zagger on February 7, 2011 11:43 AM ET

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[JURIST] UK think tank Policy Exchange [think tank website] called Monday for the UK to withdraw [text, PDF] from the European Court of Human Rights (ECHR) [official website] in favor of a domestic high court. Senior UK judge, Lord Leonard Hoffman, wrote the foreword, saying the "Strasbourg court has taken upon itself an extraordinary power to micromanage the legal systems of the member states," pointing specifically to a controversial ruling [JURIST report] that the UK could not take away convicted prisoner's right to vote. The report, written by former government adviser Dr. Michael Pinto-Duschinsky, explains that the ECHR has gradually grown in power. It calls for the UK to try to negotiate reforms with the court to limit its jurisdiction, and, if unsuccessful, states "the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights in Strasbourg and establishing the Supreme Court in London as the final appellate court for human rights law." The UK currently incorporates the European Convention on Human Rights [text, PDF] into its law, but the ECHR has the final interpretation. The report suggests that, if the UK pulls out, a domestic court would be final arbiter on human rights issues, and there would be no right to appeal to the ECHR. Still, some legal experts in the UK say that severing ties with the European court would harm its commitment [BBC report] to protecting human rights and to the Council of Europe and the EU [official websites].

The ECHR and the UK have also clashed over the issue of extradition of terror suspects. Last month, the UK government's independent reviewer of terror laws published a report [JURIST report] saying that rulings from the ECHR made it difficult to remove foreign terror suspects from Britain. The ECHR refused to grant the government's request that a terror suspect be required to show that it is more likely than not that he would be subject to ill-treatment. The ruling lowered the suspect's burden of proving that he would be faced with ill-treatment upon returning to his home country. Last July, the ECHR stayed the extradition of four terrorism suspects [JURIST report] from the UK to the US, holding that potential punishment could violate Convention's provisions on the prohibition of torture and inhumane or degrading treatment.




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Rights groups urge Bush prosecution under torture convention
Dwyer Arce on February 7, 2011 10:13 AM ET

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[JURIST] The Center for Constitutional Rights (CCR) and the European Center for Human Rights (ECCHR) [advocacy website] on Monday urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [press release] against former US president George W. Bush [JURIST news archive]. The call came as the rights groups announced that two criminal complaints [text, PDF] were to be filed on Tuesday in Switzerland against Bush before he canceled his February 12 trip to the country. Swiss law requires the defendant to be in the country before an investigation can be opened. The complaint was to be accompanied by extensive supporting documents [materials, PDF]. The groups claimed that Bush canceled his trip due to the impending indictment, an assertion that Bush has denied [Guardian report], and called on other signatory states to begin similar investigations against Bush. The groups urged that he is not entitled to any immunity as a former head of state under the CAT, and argued that Bush "bears individual and command responsibility for the acts of his subordinates which he ordered, authorized, condoned or otherwise aided and abetted, as well as for the violations committed by his subordinates which he failed to prevent or punish." The CCR explained that CAT signatories, which comprise 147 countries including the US, are obligated to pursue charges:
While the US has thus far failed to comply with its obligations under the Convention Against Torture to prosecute and punish those who commit torture, all other signatories, too, are obligated to prosecute or extradite for prosecution anyone present in their territory they have a reasonable basis for believing has committed torture. If the evidence warrants, as the Bush Torture Indictment contends it does, and the US fails to request the extradition of Bush and others to face charges of torture there, CAT signatories must, under law, prosecute them for torture.
The indictment cites Bush's recent memoir Decision Points as establishing his individual responsibility. In the book, Bush admits to the personal authorization of waterboarding and other so-called "enhanced interrogation techniques." Criminal investigations against Bush are ongoing in Germany, France and Spain under those countries' universal jurisdiction statutes.

Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report]. In November, the American Civil Liberties Union (ACLU) [advocacy website] urged US Attorney General Eric Holder to investigate Bush for violation of the federal statute prohibiting torture [18 USC § 2340A]. Also citing his memoir, the ACLU argued that the use of waterboarding has historically been prosecuted as a crime in the US. The letter also argued that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].




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Lebanon tribunal meets to define 'terrorism' for Hariri case
Sarah Paulsworth on February 7, 2011 10:00 AM ET

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[JURIST] The UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive] met on Monday to define key terms related to the assassination of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. In particular, the STL is seeking to define the term "terrorism" [AP report] in order to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people. To date, there is no international consensus on what constitutes the crime of terrorism. This process marks the beginning of the judicial process [Al Jazeera report], after a lengthy investigation. Indictments could be unsealed later this month, with the trial starting in a year. The STL is the first international court with jurisdiction over the crime of terrorism [AFP report].

Last month, STL Prosecutor Daniel Bellemare filed [JURIST report] a sealed indictment [statement, PDF; press release] with the tribunal's pretrial judge charging an unknown number of people for their roles in Hariri's assassination. 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]. In August, Hezbollah submitted evidence to the STL [JURIST report] linking Israel with the bombing. The STL asked for the evidence [JURIST report] 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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Iran prison officials executed over protester deaths
Carrie Schimizzi on February 6, 2011 1:28 PM ET

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[JURIST] The Iranian government has executed two men convicted of killing [JURIST report] three anti-government protesters in prison in 2009, according to a report Sunday by pro-government website Khabarnameh Daneshjooyan. The execution of the two prison officials was reported [AFP report] by Abdolhossein Rouhalamini, the father of one of the deceased protesters. The men were charged with torturing and eventually killing Mohammad Kamrani, Amir Javadi-far and Mohsen Ruholamini while they were detained at Kahrizak jail south of Iran. The two men were sentenced to death by hanging last June in a highly controversial trial [JURIST report] that included nine other defendants. Observers had accused the Iranian government of conducting the trial as a mere political move. The Iranian government was also sharply criticized by both pro-democracy leaders and government supporters for the death of the protesters, who were incarcerated after the June 2009 disputed presidential election [JURIST news archive]. Authorities initially claimed that the three detainees had died from meningitis, holding that the torture accusations were the propaganda of the opposition party. This viewpoint began to shift in August when government officials spoke out [JURIST report] against the abuse of protesters detained in Iranian prisons and Supreme Leader Ayatollah Ali Khamenei [official website] ordered the closure of Kahrizak prison as a result.

In August, Tehran prosecutor Saeed Mortazavi was named among three top judicial officials who were suspended [JURIST report] in connection with the detainee deaths. The suspension will strip Mortazavi of his judicial immunity and clear the way for his prosecution. Last January, an Iranian parliamentary inquiry found [JURIST report] that Mortazavi was responsible for the deaths. The report alleged that Mortazavi, the prosecutor responsible for overseeing the Kahrizak prison, ordered that the prisoners be transferred to Kahrizak, where they were tortured and beaten to death. The US government and EU issued a joint statement [JURIST report] in February condemning the human rights violations following the presidential election. In December, Amnesty International (AI) [advocacy website] labeled [JURIST report] the human rights violations committed by the Iranian government following the election among the worst of the past 20 years.




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Joint Egypt panel to study constitutional reform
Drew Singer on February 6, 2011 10:36 AM ET

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[JURIST] The Egyptian government will meet with opposition leaders Sunday to study potential changes to its constitution [text], but opposition leaders are hesitant to believe anything will come of the effort [BBC report]. A committee of judicial and political leaders from the government and from opposition parties will suggest constitutional amendments. The Muslim Brotherhood [official website], the oldest and largest Islamic political group in the world, will be a part of the discussions despite currently being banned from Egypt. Cooperation in the constitutional review, the Brotherhood said, will only continue if the current regime continues to meet other demands. These demands include the removal of Egyptian President Hosni Mubarak [Al Jazeera profile] and the removal of emergency laws that have been in place for more than thirty years.

UN High Commissioner for Human Rights Navi Pillay [official website] on Friday called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [JURIST report] who have been arrested and for the government to investigate whether the violence against protesters [JURIST report] has been planned. Pillay condemned Thursday's arrest of 20 activists and lawyers from the Hisham Mubarak Law Centre [advocacy website, in Arabic] in Cairo. Staff members from the international rights organizations Amnesty International and Human Rights Watch were among those detained [AI press release] at the law center.




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Mississippi federal judge dismisses health care challenge
Maureen Cosgrove on February 5, 2011 3:07 PM ET

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[JURIST] A judge for the US District Court for the Southern District of Mississippi [official website] on Thursday dismissed [opinion, PDF] a lawsuit challenging the health care reform law [HR 3590 text; JURIST news archive]. Judge Keith Starrett ruled that plaintiffs, Mississippi Lt. Governor Phil Bryant [official website] and 10 other Mississippi residents who filed the complaint [text, PDF], failed to show they have legal standing pursuant to Article III [text] of the Constitution to challenge part of the health law that requires people to purchase insurance or face tax penalties. The plaintiffs argued that the "probability of injury" resulting from non-compliance with the legislation was sufficiently certain or imminent, and therefore met standing requirements. The defendants argued that the alleged injury, though economic, was too remote to confer standing. The court agreed that the plaintiffs' allegations were insufficient to show "certainly impending" injury. Starrett gave the plaintiffs 30 days to amend their complaint.

There are currently cases in 28 states challenging the provisions of the Patient Protection and Affordable Care Act (PPACA). On Thursday, Virginia Attorney General Ken Cuccinelli II [official profile] announced [press release; JURIST report] that he will file a petition for certiorari before judgment with the US Supreme Court [official website; JURIST news archive], asking the court to hear an appeal in the case of Commonwealth v. Sebelius [materials], the Commonwealth of Virginia's challenge to the health care reform law. Earlier this week, a judge for the US District Court for the Northern District of Florida [official website] struck down [opinion, PDF; JURIST report] the law as an unconstitutional overreaching of Congress' Commerce Clause [Cornell II backgrounder] power. The entire law was voided in that case, as the judge found the individual insurance mandate to be unserverable. That decision is expected to be appealed to the US Court of Appeals for the Eleventh Circuit [official website]. Earlier in January, 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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US-Russia nuclear arms treaty enters into force
Megan McKee on February 5, 2011 11:04 AM ET

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[JURIST] The US and Russia on Saturday formally inaugurated the New START treaty [materials, PDF; JURIST news archive], an agreement intended to reduce nuclear arms in both countries. At the security conference in Munich, US Secretary of State Hillary Clinton [official profile] and Russian Foreign Minister Sergei Lavrov [official profile, Russian] exchanged documents that finalized two years of negotiations aimed at improving relations between the two nations and marked the entering into force [Reuters report] of the treaty. The nuclear disarmament treaty calls for each country to reduce its nuclear arsenal by about 30 percent and allows each nation to have 1,550 warheads as opposed to the 2,200 allowed under the old Strategic Arms Reduction Treaty [materials], which expired in December 2009.

In January, Russian President Dmitri Medvedev [Guardian profile; JURIST news archive] signed into law a bill that ratified the New START treaty. The Russian Federation Council voted to ratify the treaty [JURIST report] earlier that 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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Federal judge upholds detention of Yemeni at Guantanamo
Megan McKee on February 5, 2011 10:17 AM ET

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[JURIST] A federal judge on Thursday upheld the detention of Mashur Al Sabri [summary of evidence, PDF], a Saudi-born Yemeni citizen who was captured between Afghanistan and Pakistan and detained as an enemy combatant in December 2002. Sabri is currently 32 years old and has been held for more than eight years in the Guantanamo Bay detention facility. The ruling [Miami Herald report] by Judge Ricardo Urbina [official profile] of the US District Court for the District of Columbia [official website] was issued under seal, and it is not presently known why or which parts of the Pentagon's allegations he found convincing. District court judges have now upheld the detention of 21 individuals and allowed for the release of 38 others, with several cases being appealed.

Earlier this week, the Center for Constitutional Rights (CCR) [advocacy website] used the death of a Guantanamo detainee to highlight what it claims are problems with the detention system [press release; JURIST report] currently used by the US for dealing with suspected terrorists. The deceased, Awal Gul, had been at the Guantanamo Bay detention center since October 2002, suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF]. Gul died on Tuesday of an apparent heart attack after he had completed some aerobic exercises. The CCR believes that the circumstances surrounding Gul's death illustrate the inherent problem with the detention center and the policy the US follows in detaining and indefinitely holding suspected terrorists, claiming that the facility has become a purgatory, where people are held indefinitely. What to do with Guantanamo detainees remaining in US custody continues to be a significant issue. In January, Human Rights Watch criticized President Barack Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign. Earlier last month, Obama signed a defense authorization bill that prohibits the transfer of detainees to the US for trial [JURIST report], further confusing the future of the 177 men currently at the facility. In an effort to reduce the population at the facility, the US has been transferring detainees [JURIST report], some to their native countries.




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Cuba to free 2 more political prisoners
John Paul Putney on February 4, 2011 3:13 PM ET

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[JURIST] The Cuban Roman Catholic Church [official website] announced Friday that Cuban officials have agreed to release two more political prisoners. The agreement includes allowing Angel Moya to stay in Cuba [VOA report] and Guido Sigler to go to the US. Moya is only the second prisoner [Reuters report] authorities have allowed to remain in Cuba. So far, most have been released on the condition that they relocate with their families to Spain. Moya's wife is one of the leaders [AFP report] of the Ladies in White [advocacy website, in Spanish] which is composed of relatives of the jailed dissidents. Sigler and Moya are part of the 52 prisoners authorities Cuba agreed to free [JURIST report] in July. Authorities indicated their refusal to leave Cuba resulted in their delayed release [BBC report]. The nine remaining prisoners have likewise refused to leave Cuba, and no date has been set for their release.

Cuba continues to face criticism for its human rights record including claiming that the Cuban government repressed dissidents and violated fundamental civil liberties. In November, Havana released the only other dissident who was permitted to stay in Cuba [JURIST report], reportedly because of advanced age. In October, dissident Guillermo Farinas was awarded the Sakharov Prize [JURIST report], given to those who work for human rights and fundamental freedoms. In July, the first of the prisoners was released [JURIST] a few days after the original deal was brokered.




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Federal appeals court upholds terrorism conviction of Florida doctor
Drew Singer on February 4, 2011 1:36 PM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the Second Circuit [official website] on Friday voted 2-1 to uphold the conviction [opinion, PDF] of a Florida doctor who offered to treat injured al Qaeda [JURIST news archive] fighters so they could return to fighting Americans in Iraq. Petitioner Dr. Rafik Sabir argued that 18 USC § 2339B [text], the statute under which he was convicted of attempting to provide material support to a designated terrorist organization, was "unconstitutionally vague and overbroad" and that the evidence presented a trial was insufficient to support his conviction. Sabir specifically challenged the lower court's finding that providing medical treatment was the equivalent of providing "material support" to a terrorist organization. He argued that he had an ethical duty as a physician to offer medical treatment to those in need. The court rejected Sabir's arguments stating that the record did not support the characterization of Sabir's activities as merely meeting an ethical obligation. The court held:
Sabir was not prosecuted for performing routine duties as a hospital emergency room physician, treating admitted persons who coincidentally happened to be al Qaeda members. Sabir was prosecuted for offering to work for al Qaeda as its on-call doctor, available to treat wounded mujahideen who could not be brought to a hospital precisely because they would likely have been arrested for terrorist activities.
The court concluded that Sabir's actions went beyond honoring his Hippocratic oath, to swearing an allegiance to al Qaeda as "one of the soldiers of Islam." The court also rejected arguments that he was denied a fair trial and that district court abused their discretion in addressing alleged juror misconduct.

Sabir, a US citizen, was convicted [JURIST report] on the terrorism-related charges by a federal court in 2007. He was arrested and charged [JURIST report] in May 2005 following several meetings with an undercover FBI agent posing as an al Qaeda recruiter, during which Sabir pledged his loyalty to al Qaeda and agreed to provide medical assistance to wounded terrorists in Saudi Arabia. A second defendant, Tariq Shah, who was also caught in the FBI sting pleaded guilty in 2007 to providing material support to al Qaeda. Shah, who had agreed to teach hand-to-hand combat to al Qaeda operatives, is serving a 15-year sentence. Sabir is currently serving a 25-year prison sentence.




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Eleventh Circuit revives Colombia wrongful death suit against Alabama company
Dwyer Arce on February 4, 2011 12:46 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Thursday revived [opinion, PDF] a lawsuit against Drummond Company [corporate website] alleging that the company hired Colombian paramilitaries to assassinate plaintiffs' fathers. The plaintiffs brought suit against Drummond under the Alien Torts Statute (ATS) [28 USC § 1350], the Torture Victim Protection Act of 1991 (TVPA) [materials], which allows US citizens to sue for terrorist acts committed by US firms abroad, and the wrongful death laws of Colombia. The US District Court for the Northern District of Alabama [official website] had dismissed [opinion, PDF] the suit, finding that the plaintiffs lacked standing to bring the suit in federal court and that some of the claims were barred by res judicata [Cornell LII backgrounder]. In reversing the ruling, the Eleventh Circuit found that the plaintiffs had met the requirements of standing under the US Constitution [text], holding that, due to the deaths of their fathers, the plaintiffs' legal rights had been violated, the violation was traceable to the challenged action of the defendant, and monetary damages would be appropriate if liability was established. The court then held that the plaintiffs could bring suit as wrongful death claimants under the ATS and TVPA and that their claims were not subject to res judicata. The court explained in regard to the ATS claim:
[T]he complaint alleges an intricate and vindictive plot, orchestrated by the defendants, that ultimately led to the assassinations of the [plaintiffs'] fathers. If true, such conduct establishes a violation of international law sufficient for purposes of triggering ATS liability. It is thus no surprise that the Northern District of Alabama concluded in prior litigation against these defendants that this misconduct would constitute a violation of the law of nations sufficient to fit within the ATS.
The plaintiffs alleged that after Drummond employees in Colombia successfully unionized, the company paid the United Self-Defense Forces of Colombia (AUC) [CFR backgrounder] to break up the union and murder its leaders, plaintiffs' fathers.

In April, victims of paramilitary violence in Colombia filed suit against Chiquita Brand International [JURIST report], which has admitted to funding the AUC. In the complaint filed in the US District Court for the Southern District of Florida [official website], 242 Colombians alleged that they had been seriously injured or had family members killed by the group. The AUC has been accused of mass killings during the Colombia guerrilla warfare movement before disarmament in 2003. The plaintiffs, who are seeking over $1 billion in damages, brought suit under the TVPA. Last February, a federal judge allowed a lawsuit to go forward [JURIST report] accusing Chiquita of assisting Marxist rebels who killed Colombian missionaries. Chiquita admitted it had paid AUC for protection of its workers but it argued that it did not condone the killings. In 2007, Chiquita was fined $25 million [JURIST report] after it admitted to making payments of around $1.7 million from 1997 to 2004 to AUC. Following that admission, hundreds of family members of Colombians killed by FARC filed lawsuits in the US against Chiquita under the ATS.




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Denmark court sentences Muhammad cartoonist attacker to 9 years
LaToya Sawyer on February 4, 2011 12:38 PM ET

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[JURIST] A Danish court on Friday sentenced Somali Islamist Muhideen Mohammed Geelle to nine years in prison for his 2010 attack on Kurt Westergaard, illustrator of the controversial 2005 cartoon depicting the Prophet Muhammad [BBC backgrounder; JURIST news archive] as a suicide bomber. Geele was convicted [Copenhagen Post report] on Thursday on charges of attempted murder and terrorism for breaking into [JURIST report] Westergaard's home and threatening him with an axe and knife. In issuing its ruling, the court stated that Geele's attack amounted to an attempt to destabilize Danish society [DW report] and terrify the public. Upon completion of his sentence, Geele will face permanent expulsion from Denmark and deportation to Somalia. Lawyers for Geele had requested a lesser sentence of six years without deportation, expressing fear for Geele's safety if deported to Somalia due to present dangers in the war-torn nation. Geele's lawyers have announced that they will appeal the sentence.

Westergaard's 2005 picture of the Muhammad was one of a series of caricatures published by a Danish newspaper that infuriated Muslims around the world. Many Muslims consider depictions of Muhammad offensive, and when other newspapers reprinted the caricatures in 2006 it triggered violence in several countries, leading to multiple deaths, the burning of Danish embassy buildings[JURIST reports], and boycotts of Danish goods. In April, a Dutch court acquitted [JURIST report] the Arab European League (AEL) on charges of making discriminatory and defamatory statements against Jews when they posted a cartoon on their website that insinuated that the Holocaust was fabricated. The AEL argued that they posted the cartoon in response to what they saw as double standard in the distribution of Danish cartoons depicting Muhammad even though they did not actually deny the historical facts of the Holocaust.




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Rights group claims Guantanamo detainee death shows failure of detention system
Brian Jackson on February 4, 2011 10:46 AM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] on Thursday used the death of a Guantanamo [JURIST news archive] detainee to highlight what it claims are problems with the detention system [press release] currently used by the US for dealing with suspected terrorists. The detainee, Awal Gul, had been at the Guantanamo Bay detention center since October 2002, suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF]. Gul died on Tuesday of an apparent heart attack after he had completed some aerobic exercises. The CCR believes that the circumstances surrounding Gul's death illustrate the inherent problem with the detention center and the policy the US follows in detaining and indefinitely holding suspected terrorists, claiming that the facility has become a purgatory, where people are held indefinitely:
Awal Gul's death illustrates too well what Guantanamo has become - a prison where Muslim men are held indefinitely until they die because the president lacks political courage to release or charge them in any forum. President Obama must close Guantanamo lest more detainees die there, including roughly 90 men who are approved for transfer at some undetermined point in the future.
Gul's attorney also released a statement, echoing many of the same issues raised by the CCR and taking issue with the DOD's press release which included claims against Gul that were not raised while he was alive.

As the number of detainees at the Guantanamo Bay facility decreases, the issue of what to do with those remaining in US custody continues to be a significant issue. In January, Human Rights Watch criticized President Barack Obama [JURIST report] for failing to shut down the facility as he promised during the 2008 presidential campaign. Earlier last month, Obama signed a defense authorization bill that prohibits the transfer of detainees to the US for trial [JURIST report], further confusing the future of the 177 men currently at the facility. In an effort to reduce the population at the facility, the US has been transferring detainees [JURIST report], some to their native countries.




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UN rights chief calls for release of Egypt lawyers, journalists, activists
Andrea Bottorff on February 4, 2011 9:20 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Friday called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [official statement] who have been arrested and for the government to investigate whether the violence against protesters [JURIST report] has been planned. Pillay condemned Thursday's arrest of 20 activists and lawyers [HMLC news release] from the Hisham Mubarak Law Centre [advocacy website, in Arabic] in Cairo. Staff members from the international rights organizations Amnesty International and Human Rights Watch [advocacy websites] were among those detained [AI press release] at the law center. Pillay emphasized the importance of protecting human rights during a time of political change in the region:
Governments should listen to their people, and start addressing their human rights deficits immediately. Waiting until unrest actually happens is, as we have seen in Tunisia and are now seeing in Egypt, not only perpetuating systems that to a greater or lesser degree transgress international laws and standards, it is also a classic case of acting too little, too late. We now see there is an intense hunger for human rights in the Middle East and North Africa - and of course in other countries in other regions. Governments who ignore these extremely loud and clear warning signals, are doing so at their own peril.
Pillay also urged the Egyptian government to maintain open communications and protect media outlets, criticizing the government's "hijacking" of cell phone company Vodaphone [corporate website] in order to send political text messages [WP report] to citizens.

Demonstrations against the 30-year reign of Egyptian President Hosni Mubarak [Al Jazeera profile] began last week [JURIST report] and have become more violent since Mubarak announced Tuesday that although he will not seek re-election [speech transcript], he does not plan on stepping down nor leaving Egypt. Some reports allege as many as 300 deaths and 1,500 injuries [Ria Novosti report] as a result of the protests. Nobel Peace Prize laureate and Egyptian opposition leader Mohamed ElBaradei [Nobel Prize profile] last week expressed his willingness to lead a transitional government [BBC report], has returned to Egypt and is reported to have joined the protests. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].




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Federal judge finds US government in contempt for drilling moratorium
Carrie Schimizzi on February 4, 2011 8:47 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Louisiana [official website] on Wednesday found [order] the US Department of Interior (DOI) [official website] in contempt and ordered the department to pay attorney's fees for Hornbeck Offshore Services [corporate website] and several other drilling companies challenging the government's latest moratorium on offshore drilling [JURIST report]. Judge Martin Feldman found that the government violated his preliminary injunction [opinion, PDF] to lift a six-month moratorium on deepwater drilling [JURIST report] when US Interior Secretary Ken Salazar [official profile] issued a new moratorium that was substantially the same as the previous one and that it would cause the same financial injury to the industry as the first moratorium. In holding the DOI in civil contempt, Judge Feldman ruled:
Each step the government took following the Court's imposition of a preliminary injunction showcases its defiance: the government failed to seek a remand; it continually reaffirmed its intention and resolve to restore the moratorium; it even notified operators that though a preliminary injunction had issued, they could quickly expect a new moratorium. Such dismissive conduct, viewed in tandem with the reimposition of a second blanket and substantively identical moratorium and in light of the national importance of this case, provide this Court with clear and convincing evidence of the government's contempt of this Court's preliminary injunction Order.
Feldman referred the matter to a magistrate judge to determine the amount of fees to be paid.

Feldman refused to reinstate the moratorium [JURIST report] last year at the request of advocacy groups such as the Defenders of Wildlife [advocacy website], which also argued that the judge should be disqualified from the case because he owned stock in several oil and drilling companies. Feldman refused to recuse himself [JURIST report]. Earlier in July, the Obama administration asked a federal appeals court to reinstate the original six-month drilling moratorium [JURIST report], arguing that the ban should be upheld because the government would likely win its appeal of the lower court's ruling. The US Department of Justice (DOJ) [official website] originally asked the court of appeals 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 spill with catastrophic results. Lawyers for the DOJ also claimed that that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil leaked from the rig's broken pipe causing the spill to surpass the Exxon Valdez [JURIST news archive] as the worst oil spill in US history.




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Federal court hears new Voting Rights Act challenge
Daniel Richey on February 3, 2011 1:27 PM ET

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A judge for the US District Court for the District of Columbia [official website] heard arguments Wednesday on a new challenge to the Voting Rights Act of Act of 1965 (VRA) [materials]. Arguing before Judge John Bates, officials representing Shelby County, Alabama, together with a corps of conservative activists, argued that it is no longer constitutionally justifiable to subject Alabama and certain other states—virtually all Southern—to Section 5 [DOJ backgrounder] pre-clearance rules under the VRA, requiring them to clear changes in voting districts, polling places and other electoral processes with the Department of Justice (DOJ) [official website] or federal courts. The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. Although the Senate extended the act [NYT report] an additional 25 years by an overwhelming 98-0 vote in 2006, its basis in a legacy of discrimination evidenced more than 45 years ago has gone largely unexamined. Bates expressed doubt [AP report] at the notion that the policy considerations underlying the VRA could be considered salient by the end of the extension, 70 years after its enactment. The DOJ argued that the act remains justified by a continued, observable pattern of more subtle means of racial discrimination at the polls in the Section 5 districts. Civil rights groups point to a 2009 case in which the DOJ invalidated [Birmingham News report] the 2006 redistricting of Calera, Alabama that eliminated the city's only majority-black district and cost black incumbent Ernest Montgomery his council seat.

Bates' comments echoed similar sentiments expressed by the Supreme Court [official website; JURIST news archive] last year when it upheld [opinion, PDF; JURIST report] a controversial provision of the VRA in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder]. In that most recent challenge to the VRA, the court voted 8-1 in favor of permitting the appellant municipality to "bail out" from the Section 5 pre-clearance requirement if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of the 25-year extension of the act. Writing for the majority, Chief Justice Roberts opined that "things have changed in the South," observing that "[b]latantly discriminatory evasions of federal decrees are rare." The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension generally. At their enactment in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times.




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UK terrorism expert criticizes European court rulings on control orders
Maureen Cosgrove on February 3, 2011 1:27 PM ET

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[JURIST] The UK government's independent reviewer of terror laws on Thursday published a report [text, PDF] saying that rulings from the European Court of Human Rights (ECHR) [official website] made it difficult to remove foreign terror suspects from Britain. Control orders [Guardian backgrounder; JURIST news archive], created by the Prevention of Terrorism Act of 2005 (PTA) [text], are available to authorities when a terror suspect resists deportation for fear that he or she will be ill-treated in his or her home country. The ECHR refused to grant the Government's request that a terror suspect be required to show that it is more likely than not that he would be subject to ill-treatment. The ruling lowered the suspect's burden of proving that he would be faced with ill-treatment upon returning to his home country. The reviewer of the sixth annual report, Lord Carlile of Berriew [Times profile; JURIST news archive], concluded that, despite political controversy and court decisions that challenged the system's goals, the control order system functioned well in 2010:
[I]t is my view and advice that abandoning the control orders system now would have a damaging effect on national security. Of course, on their own control orders are not a failsafe or foolproof mechanism for full disruption of suspected terrorists. Further, because they are a resource-intensive tool for all involved in their management, self-evidently they cannot be used to manage the risk posed by all non-prosecutable suspected terrorists against whom there is robust intelligence.
Carlile also called for a formal system for briefing political leaders to inform the debate on a possible replacement for the control order system.

In January, UK Home Secretary Theresa May [official profile] announced proposed changes [press release; JURIST report] to Britain's anti-terrorism policies, including the controversial use of control orders. 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 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 on 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. Control orders allow the British government to conduct surveillance and impose house arrest on suspects where there does not exist enough evidence to prosecute. The orders can also be used to forbid the use of mobile phones and the Internet.




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Kenya high court rules judicial appointments unconstitutional
Julia Zebley on February 3, 2011 1:26 PM ET

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[JURIST] Kenya's High Court of Nairobi [official website] ruled Thursday that recent judicial nominations by President Mwai Kibaki [official profile; JURIST news archive] are unconstitutional, halting parliament's approval proceedings. Agreeing with an earlier pronouncement [JURIST report] by Prime Minister Raila Odinga [Guardian profile; JURIST news archive], Justice Daniel Musinga ruled in favor of eight advocacy groups, largely devoted to women's rights, which alleged that recent appointments violated promises of equality. Musinga found that Kibaki's appointments violated Article 27(3) of the constitution [text, PDF], which states, "[w]omen and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres." Musinga declared that the error lied in Kibaki not consulting Odinga and other officials enough in the appointment process. The Office of Public Communications [official website] released a statement [text] following the announcement of the ruling: "President Kibaki and Prime Minister Raila Odinga had held extensive consultations prior to the announcement of the names on Friday evening." Although the High Court is the final arbiter on matters of constitutional interpretation, Musinga stated [Capital News], "unless the Speaker points out the unconstitutionality of such debates then the court cannot sit back and allow such violation." The Legislative Speaker of Parliament [official website], Kenneth Marende, was expected to rule [Reuters Africa] on the issue Thursday, but declined and directed the issue to two committees [speaker's ruling, PDF]. The Justice and Legal Affairs committee and Finance Planning and Trade committee will research and deliberate on the issue, and announce their decision next week.

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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California, Countrywide settle predatory lending charges for $6.5 million
Sarah Posner on February 3, 2011 1:07 PM ET

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[JURIST] The Superior Court of California County of Los Angeles [official website] on Wednesday approved [opinion, PDF] a $6.5 million settlement between the state of California and two former Countrywide Financial Corporation executives accused of predatory lending. The lawsuit alleged that Countrywide lured borrowers with low teaser rates prior to the mortgage crisis. The loan officers did not warn borrowers of the downside of these loans, leading tens of thousands of homeowners into foreclosure. Following the settlement, Attorney General Kamala D. Harris [official website] announced [press release] that the money would be used to a establish a statewide Foreclosure Crisis Relief Fund, which will help California residents affected by the mortgage crisis and high foreclosure rates. According to the settlement,
At its discretion, the Office of the Attorney General may use the Fund to cover expenses it incurs in the course of investigating and prosecuting misconduct relating to mortgage origination, mortgage servicing, and foreclosures, and for consumer education regarding mortgage issues...The Office of the Attorney General, at its discretion, may also use these funds to develop and implement programs to help neighborhoods impacted by foreclosure or mortgage default rates.
The court will maintain jurisdiction over the matter to ensure that the orders of the judgment are properly carried out.

The decision is among several lawsuits relating to the sub-prime mortgage crisis. Last month, the Massachusetts Supreme Judicial Court [official website] issued a decision [text, PDF; JURIST report] against banks in two foreclosure cases that could have important implications on similar cases both inside and outside of the state. In December Arizona Attorney General Terry Goddard [official profile] filed a lawsuit [JURIST report] against Bank of America (BOA) [corporate website] for misleading customers in mortgage modification and foreclosure practices. Specifically, the complaint [complaint, PDF] alleged that BOA violated a 2009 consent agreement, in which it agreed to develop and implement loan modification programs, by continuing to engage in widespread consumer fraud by misrepresenting to Arizona customers whether they were eligible for modifications of their mortgage loans. Additionally, in July 2010, The US Securities and Exchange Commission [government website] announced [JURIST report] that it charged Citigroup Inc. [official website] with misleading investors about the company's exposure to sub-prime mortgage-related assets and settled with the company [press release] for $75 million.




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Sixth Circuit rules against Ten Commandments in Ohio courthouse
Daniel Makosky on February 3, 2011 11:04 AM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Wednesday upheld [opinion, PDF] a lower court ruling barring the Ten Commandments [JURIST news archive] from being displayed in an Ohio courthouse. The display, called "Philosophies of Law in Conflict," includes two columns bearing the headings "Moral Absolutes: The Ten Commandments" and "Moral Relatives: Humanist Precepts" and was situated above a sign encouraging readers to ask Richland County Common Pleas Court [official website] Judge James DeWeese for additional information. The court rejected DeWeese's argument that the display is protected private religious expression and held that despite "replacing the word religion with the word philosophy," the display "sets forth overt religious messages and religious endorsements" in a public forum adjacent to a sitting judge.

The Sixth Circuit in June upheld an injunction against similar displays [JURIST report] in two Kentucky courthouses, finding that they represented simply another strategy "in a long line of attempts" to comply with the Constitution for litigation purposes and did not "minimize the residue of religious purpose." A month earlier, the same court denied an en banc rehearing in another case [opinion, PDF] involving the display of the Ten Commandments in a Grayson County, Kentucky, courthouse. The court found the display to be constitutional because it presented a valid secular purpose from the outset. In a 2005 decision, the Sixth Circuit ruled in favor of a Ten Commandments display [JURIST report] in a Mercer County, Kentucky, courthouse. A 2005 Supreme Court decision [JURIST report] prohibiting an earlier attempt at a similar display in Kentucky prompted lawmakers to propose a constitutional amendment [JURIST report] to overturn it. On the same day it issued that ruling, the Supreme Court ruled that a six-foot-tall display of the Ten Commandments [JURIST report] on the grounds of the Texas state capitol was constitutionally acceptable because it had a secular purpose.




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Virginia AG to ask Supreme Court for immediate review of health care ruling
Daniel Richey on February 3, 2011 10:43 AM ET

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[JURIST] Virginia Attorney General Ken Cuccinelli II [official profile] announced [press release] Thursday that he will file a petition for certiorari before judgment with the US Supreme Court [official website; JURIST news archive], asking the court to hear an appeal in the case of Commonwealth v. Sebelius [materials], the Commonwealth of Virginia's challenge to the recently enacted health care reform law [HR 3590 text; JURIST news archive]. In December, a judge for the US District Court for the Eastern District of Virginia [official website] ruled [opinion, PDF; JURIST report] that the minimum coverage mandate provision of the law is unconstitutional. He left the rest of the law intact, holding that the coverage mandate was severable. Surpeme Court Rule 11 [text] allows the court to exercise direct discretionary appellate jurisdiction over cases with exceptionally far-reaching or urgent public policy implications. According to Cuccinelli, "a case cannot have public policy implications that are more important" than those at stake in the case:
Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act [PPACA], we feel that it is necessary to seek resolution of this issue as quickly as possible. Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. ... We did not make this decision lightly. Given his unique responsibilities to fund and implement PPACA as Governor of Virginia, Governor McDonnell is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down.
The court's exercise of Rule 11 jurisdiction has been exceedingly rare, occurring only "upon a showing that the case is of such imperative public importance to justify deviation from normal appellate practice."

There are currently cases in 28 states challenging the provisions of the PPACA. Earlier this week, a judge for the US District Court for the Northern District of Florida [official website] struck down [opinion, PDF; JURIST report] the law as an unconstitutional overreaching of Congress' Commerce Clause [Cornell II backgrounder] power. The entire law was voided in that case, as the judge there found the mandate to be unserverable. That decision is expected to be appealed to the US Court of Appeals for the Eleventh Circuit [official website]. Earlier in January, 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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Federal judge rules BP oil spill victim fund not independent entity
Daniel Makosky on February 3, 2011 10:24 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Louisiana [official website] on Wednesday ordered [opinion, PDF] the administrator for the Gulf Coast Claims Facility (GCCF) [official website] to refrain from characterizing himself as independent from British Petroleum (BP) [corporate website] in communications with victims of the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] that occurred in the Gulf of Mexico. Citing an intention to facilitate transparency, District Judge Carl Barbier ruled that the GCCF, a $20 billion fund established by BP to aid victims of the spill, is a "hybrid entity" that is not completely independent from BP. As such, Kenneth Feinberg [WP profile], the fund's administrator, may not identify himself as a neutral third-party and must make clear that he represents BP in the company's efforts to satisfy its obligations as required by the Oil Pollution Act of 1990 (OPA) [materials]. Feinberg has previously asserted his neutrality to encourage claimants to accept lesser settlements, and it is believed that the ruling will lead to a rise in lawsuits [AP report] against the company by victims who are less inclined to settle. Barbier also ordered lawyers to prepare briefs by the end of next week on whether BP's actions to this point in processing claims and settling with victims are sufficient to meet its legal responsibilities.

On Tuesday, Mississippi Attorney General Jim Hood [official website] asked the same court to order the GCCF to fulfill its legal obligations to aid victims of the spill and to remedy inadequate claims mechanisms [JURIST report]. The GCCF began processing claims in August following the completion of negotiations [JURIST reports] between BP and the US Department of Justice [official website]. Alabama Attorney General Troy King [official website] filed a lawsuit [JURIST report] in August against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July, a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits.




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Russia presidential rights council to examine Khodorkovsky verdict
Sarah Paulsworth on February 3, 2011 9:11 AM ET

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[JURIST] Russia's Presidential Council on Civil Society and Human Rights will look into the verdicts handed down against former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense website]. During a recent council meeting with Russian President Dmitry Medvedev [official website, in Russian; JURIST news archive], council member Tamara Morshchakova, a former judge for the Constitutional Court [official website, in Russian] announced that the Council is planning to submit special analysis [transcript, in Russian] for certain high-profile cases, including those of Khodorkovsky and Lebedev, as well as Hermitage Capital lawyer Sergei Magnitsky [JURIST news archive]. Morshchakova said:
The Council plans to submit to you expert legal analysis in connection with specific cases causing public outcry or defining trend of judicial practice. ... [M]aterials will be presented to Council shortly in connection with the case of well-known business lawyer Magnitsky. A similar expert analysis is being prepared by the Council on the relatively recent verdict in the case of Khodorkovsky and Lebedev. It is clear that expert legal analysis of such processes may not have direct legal consequences. But it's is certainly intended that the state authorities take necessary response action, if the legal review of these processes are inconsistent with the law.
Morshchakova also noted the council put forth a proposal to expand the use of jury trials in Russia. According to her, juries are an effective measure to fight corruption and develop a truly independent justice system. In particular, the Council's proposal seeks to increase the use of jury trials in cases involving murder, bribery and some types of economic crimes.

In January, Khodorkovsky and Lebedev's lawyers filed an appeal [JURIST report] challenging their six-year extended sentences for embezzlement and fraud. Unless the appeal succeeds, Khodorkovsky and Lebedev are expected to remain imprisoned through 2017 after being convicted in December and sentenced [JURIST reports] in the Khamovinchesky District Court [official website, in Russian] on charges connected with his embezzlement of more than $27 billion from Yukos oil. Prior to this conviction, Khodorkovsky and Lebedev were already serving eight-year prison sentences for fraud and tax evasion [JURIST report]. 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. In January, Magnitsky's former colleague William Browder announced that a group of independent UN human rights experts will investigate [JURIST report] the well-known lawyer's 2009 prison death [JURIST report].




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US immigration court orders deportation of former Nazi supporter
Ann Riley on February 3, 2011 7:45 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] announced Wednesday that the Detroit Immigration Court [official website] has ordered the removal [press release] of a Michigan man accused of killing Jews while serving as a member of the Nazi-sponsored Ukrainian Auxiliary Police (UAP) in L'viv, Ukraine, during World War II. John Kalymon, found to have personally shot Jews while serving in the UAP between 1942 and 1944 and participated in various violent anti-Jewish operations, will be deported to Germany, Ukraine, Poland or any other country that will admit him. UAP documents revealed that Kalymon took part in round-ups and forced transports of Jews repeatedly over two years. US Immigration Judge Elizabeth Hacker rejected [AP report] Kalymon's defense request for a mental-competency hearing because his dementia prevented him from testifying, ruling that he had adequate and competent legal counsel to represent him. Kalymon plans to appeal the order to the Board of Immigration Appeals or the US Court of Appeals for the Sixth Circuit. Director of Human Rights Enforcement Strategy and Policy for the Criminal Division's Human Rights and Special Prosecution Section (HRSP) [official website] Eli Rosenbaum said, "Ivan Kalymon was part and parcel of the Nazi machinery of persecution that ended the lives of more than 100,000 men, women and children in L'viv." Kalymon, now 89, immigrated to the US from Germany in 1949 and gained US citizenship in 1955. Hacker found that, when applying for his immigration visa, Kalymon concealed his UAP service. In 2004, the DOJ filed suit to revoke Kalymon's US citizenship. In 2009, the DOJ announced the initiation of removal proceedings [JURIST report] against Kalymon.

The DOJ's HRSP handles cases, including Kalymon's, aimed at denaturalizing or deporting former Nazis and other human rights violators who participated in wartime persecutions. Last May, the Philadelphia Immigration Court [official website] ordered the deportation [JURIST report] of former SS guard Anton Geiser to Austria for serving as an armed guard at the Sachsenhausen and the Buchenwald concentration camps during World War II. The court found that Geiser is removable under the 1978 Holtzman Amendment to the Immigration and Nationality Act [text] because a visa may not be granted to anyone who was involved in persecutions based on race, religion, or national origin. In 2008, the US Court of Appeals for the Third Circuit revoked [JURIST report] Geiser's US citizenship because he had obtained it illegally. In May 2009, the DOJ succeeding in deporting [JURIST report] accused Nazi war criminal John Demjanjuk [NNDB profile; JURIST news archive] to Germany to face trial. Earlier that year, German prosecutors charged Demjanjuk with 27,900 accessory counts stemming from his alleged involvement as a guard at the Sobibor [Death Camps backgrounder] concentration camp where more than 260,000 people were executed in gas chambers.




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Federal appeals court upholds life sentence for Bush assassination plotter
Daniel Makosky on February 2, 2011 3:38 PM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Tuesday affirmed [opinion, PDF] the life sentence of Ahmed Abu Ali, a US citizen who joined al Qaeda while studying abroad in Saudi Arabia. Abu Ali was convicted in November 2005 on nine charges [JURIST report] related to conspiracy to commit terrorist acts, including plotting to assassinate then-president George W. Bush. Attorneys for Abu Ali argued that the life sentence was unconstitutional and procedurally and substantively unreasonable, though the court ruled that the sentence fell within "well-established boundaries" and did not reflect an abuse of discretion.

Abu Ali's original sentence of 30 years imprisonment [JURIST report], imposed in March 2006, was increased to life [Reuters report] following a successful appeal in 2008 brought by the US Department of Justice [official website]. Sentencing proceedings were initially delayed [JURIST report] to allow lawyers in the case time to investigate whether evidence against Abu Ali had been obtained through warrantless domestic surveillance. His conviction came after a federal judge denied Abu Ali's motion to suppress his confession, which he claimed was a byproduct of torture [JURIST reports] at the hands of Saudi Arabian domestic security police. The Saudi Arabian government denied the torture allegations [JURIST report]. Abu Ali, arrested in 2003, pleaded not guilty at trial, which commenced [JURIST reports] in October 2005.




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Obama signs documents ratifying New START treaty
Hillary Stemple on February 2, 2011 2:29 PM ET

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[JURIST] US President Barack Obama [official website] on Wednesday signed documents ratifying [WH blog] the New START treaty [materials, PDF; JURIST news archive], an agreement between Russia and the US intended to reduce nuclear arms in both countries. Russian President Dmitri Medvedev [official website, in Russian; JURIST news archive] signed a bill into law last week ratifying the treaty after the Russian Federation Council approved [JURIST reports] the treaty's ratification. The new treaty, which replaces the Strategic Arms Reduction Treaty (START 1) [materials] that expired in December 2009, calls for each country to reduce its nuclear arsenal by about 30 percent and allows each country to maintain a nuclear arsenal of 1,550 warheads, as opposed to the 2,200 allowed under START 1. The treaty, agreed to [JURIST report] in February, also allows for visual inspections of nuclear capabilities [BBC report] in order to verify compliance with the treaty's terms. The previous right of mutual inspection of the nuclear arsenals ended [CNN report] with the expiration of START 1. New START will formally go into effect on Saturday when US Secretary of State Hillary Clinton and Russian Foreign Minister Sergei Lavrov [official profiles] exchange the signed documents.

New START is the first nuclear agreement between the two nations in nearly 20 years. In December, the US Senate voted 71-26 to ratify the treaty after the Russian Duma voted overwhelmingly for approval [JURIST reports] earlier in the month. US approval of the treaty came after some members of the legislative body expressed doubt [JURIST report] that the Senate would have the 67 votes required for approval. Obama and Medvedev signed the treaty in April after the US State Department began negotiating the treaty [JURIST reports] 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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Rights group accuses Indian security forces of human rights violations
Aman Kakar on February 2, 2011 1:30 PM ET

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[JURIST] The human rights advocacy group Human Rights Watch (HRW) [advocacy website] released a report [PDF] on Tuesday accusing Indian security forces of committing human rights violations in response to terrorist attacks and urging reforms in the country's justice system. The report titled "The 'Anti-Nationals': Arbitrary Detention and Torture of Terrorism Suspects in India", accuses Indian security forces at all levels of arbitrary arrests, detention, torture and religious discrimination in the aftermath of three deadly bombings of major Indian cities in 2008, for which the Indian Mujahideen [IDSA Backgrounder] took responsibility. The report also addresses the treatments of Hindu nationalists suspected to be responsible for a separate 2008 bombing. According to the report, suspected terrorists are labeled "anti-national", held without bail, often jailed without being registered and forced to give confessions to crimes. Lawyers who represent the suspected Muslim terrorists operate in an environment of open hostility, with several bar associations issuing instructions to their members to not represent the suspected terrorists. HRW also criticizes magistrates for not ordering independent investigations and ignoring the complaints of the suspected terrorists. The report takes aim at state and federal laws that facilitate the abuse of terrorism suspects. The Amendments to the Unlawful Activities (Prevention) Act (UAPA) [legislative materials] are criticized for vague definitions of terrorism, increased police powers and extending the pre-detention period for suspected terrorists to 180 days. HRW analogizes these amendments to the Prevention of Terrorism Act, a law that was repealed in 2004 because it encouraged abuse. Among its many recommendations HRW urged Indian government at all levels to repeal unlawful provisions that encourage abuse, enact a Prevention of Torture Bill and investigate allegations of abuse by police.

The Indian government has faced both international and domestic criticism for its anti-terror laws. In December 2010, Amnesty International] criticized the guilty verdict for Binayak Sen [JURIST report] on charges of aiding rebels of the Naxalite Maoist rebellion [CFR Backgrounder]. In 2008, AI urged Indian President Smt. Pratibha Devisingh Patil [official website] to reject [JURIST report] the UAPA Amendment of 2008. The bill, which came in response to the Mumbai terror attacks [BBC backgrounder; JURIST news archive]. Proponents of the UAPA have said that there are safeguards in place to make sure that the law is not misused. In 2006, the opposition Bharatiya Janata Party (BJP) [party website], alleged that the Mumbai train bombings [BBC report] were a fallout from [JURIST report] the country's Prevention of Terrorism Act, set aside by the incumbent United Progressive Alliance (UPA) in 2004.




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Kazakhstan parliament votes to hold presidential election in 2012
Sarah Posner on February 2, 2011 12:24 PM ET

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[JURIST] Kazakhstan's parliament [official website, in Kazakh] on Wednesday approved amendments to the constitution which allow President Nursultan Nazarbayev [official website, in Kazakh; BBC profile] to hold presidential elections in 2012 instead of extending his presidency until 2020. The bill was signed into law by Nazarbayev after unanimous approval by both houses of parliament. On Monday, Kazakhstan's Constitutional Council [official website, in Kazakh] rejected a proposed referendum [JURIST report] extending Nazarbayev's presidency until 2020. Following the council's decision, Nazarbayev announced a proposal for snap elections [RFE/RL report, in Kazakh] during an address to the citizens of Kazakhstan. Nazarbayev's current term in office expires in 2012 and he has already expressed his intention to run for president again in the upcoming election. A date for the new elections has not yet been announced but may be scheduled for as early as this spring.

The proposed referendum was forwarded [press release, in Kazakh] to Kazakhstan's Constitutional Council after the parliament 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]. 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 Kazakhstan Parliament initially approved [JURIST report] the referendum last month. In June 2010, 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.




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Mississippi AG seeks to remedy deficiencies of BP oil spill victim fund
Daniel Makosky on February 2, 2011 12:00 PM ET

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[JURIST] Mississippi Attorney General Jim Hood [official website] on Tuesday requested that the US District Court for the Eastern District of Louisiana [official website] order the Gulf Coast Claims Facility (GCCF) [official website] to fulfill its legal obligations to aid victims of the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] in the Gulf of Mexico. Hood is seeking a federal judge to direct Kenneth Feinberg [WP profile], administrator of the $20 billion fund established by British Petroleum (BP) [corporate website] in the wake of the disaster, to remedy inadequate claims mechanisms and expedite the processes. The filing alleges that Feinberg has yet to establish a claims process [Reuters report] consistent with the standards outlined in the Oil Pollution Act of 1990 [materials], state laws and the company's earlier promises. Hood contends that the $3.3 billion GCCF has paid to individual and business claimants represents only a fraction of the victims seeking relief and the damages claimed, and that monitoring the process is significantly inhibited by a lack of transparency.

The National Commission on the BP Deepwater Horizon Oil Spill [official website] released its full final report [text; JURIST report] earlier this month, tracing the deeper root causes of the spill and recommending steps to avoid future incidents. In October, several environmental advocacy groups filed a federal lawsuit [JURIST report] against BP for the ongoing harm to endangered and threatened wildlife caused by the spill. The GCCF, an independent facility, began processing claims in August following the completion of negotiations [JURIST reports] between BP and the US Department of Justice [official website]. Alabama Attorney General Troy King [official website] filed a lawsuit [JURIST report] in August against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July, a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. In June, two lawsuits were filed against BP [JURIST report] alleging violations of the Racketeer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute. The lawsuits allege that BP purposefully defrauded the American public in order to increase company profits. Also in June, US Attorney General Eric Holder [official website] announced that the DOJ is reviewing whether any civil or criminal laws were violated [JURIST report] by BP resulting in the oil spill.




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Rights group accuses Iraq of running secret prison
Matt Glenn on February 2, 2011 11:07 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday accused military officials [HRW report] overseen by Iraqi Prime Minister Nuri al-Maliki [BBC profile; JURIST news archive] of running a secret jail in Iraq that is not subject to inspection by international groups and torturing suspects [JURIST news archive] in another detention center. The report claims that the Iraqi Army's 56th Brigade controls the secret prison located in Camp Justice, and that Iraqi authorities ordered 280 detainees transferred there from Camp Honor in November 2010 days before international inspectors were to visit Camp Honor. The HRW report found that the 56th Brigade tortured suspects at Camp Honor, echoing a Los Angeles Times report [text] from last week. The Times found that the Camp Honor jail is run by the 56th Brigade rather than the Ministry of Justice, that prisoners face inhumane conditions, are held indefinitely and are often denied access to family members and lawyers. According to the HRW report, personnel in the overcrowded Camp Honor extracted confessions from suspected terrorists by beating them, suffocating them and making threats against their families. Deputy Justice Minister Buso Ibrahim denied the Times report [AFP report] last week, claiming that inmates can communicate with lawyers and family members and that they do not face torture or inhumane conditions. Ibrahim claimed the International Committee of the Red Cross [advocacy website] had visited Camp Honor, but the ICRC denied this, saying that it canceled the planned visit because the Iraqi government wanted to restrict its ability to talk to prisoners. Deputy Middle East director at HRW Joe Stark commented, "Revelations of secret jails in the heart of Baghdad completely undermine the Iraqi government's promises to respect the rule of law. The government needs to close these places or move them under control of the justice system, improve conditions for detainees, and make sure that anyone responsible for torture is punished."

In October, UN High Commissioner for Civil Rights Navi Pillay [official profile] called for the US and Iraq to investigate and prosecute [JURIST report] those responsible for alleged abuses that came to light after WikiLeaks [website] released documents showing extensive human rights abuses in Iraq and accusing US forces of turning prisoners over to Iraqi forces despite knowing those prisoners were likely to face torture. Days earlier, HRW called for the Iraqi and US governments to launch an investigation [JURIST report] and prosecute those responsible for alleged detainee abuse. The group said the WikiLeaks reports detail the US military's failure to prevent abuses, including beatings, burnings and lashings, of Iraqi detainees at the hands of their captors. In September, Amnesty International (AI) [advocacy website] accused the Iraqi government [JURIST report] of illegally detaining over 30,000 people and torturing many of them. Last April, HRW accused Iraqi authorities of torturing detainees [JURIST report] in another secret prison.




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UN rights chief concerned over Egypt protest casualties
Julia Zebley on February 2, 2011 9:04 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Tuesday praised the efforts [press release] of Egyptian protesters while repeating concerns over casualties [JURIST report], calling on the nation's leaders to give citizens the democratic reform they demand. There are currently unconfirmed reports of 300 casualties and 3,000 injured. Citing Article 21 of the of the Universal Declaration of Human Rights [text], Pillay stated that the will of the people should determine the government:
The authorities have a clear responsibility to protect civilians, including their right to life, and to freedom of assembly and freedom of expression. People must not be arbitrarily detained, simply for protesting or for expressing their political opinions—however unwelcome those opinions may be to those in power.
President Hosni Mubarak [Al Jazeera profile] has announced that he will not seek re-election [speech transcript], although he does not plan on stepping down nor leaving Egypt. Protesters were not mollified by this statement, and protests have increased substantially since his speech. The protesters released their official demands [AP report], which include the removal of Mubarak and no transfer of power to his son, Gamal; negotiations with the military only after Murbarak's departure; and free and fair elections for the presidency and parliament.

As of Thursday, more than 1,000 protesters have been reported as detained [JURIST report] as demonstrations against the 30-year reign of Mubarak continued. Meanwhile, Nobel Peace Prize laureate and Egyptian opposition leader Mohamed ElBaradei [Nobel Prize profile] expressed his willingness to lead a transitional government [BBC report]. Elbaradei, who previously led the International Atomic Energy Agency (IAEA) [official website], returned to Egypt 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] The similarities between recent protests was analyzed by Forum contributing editor L Ali Khan [academic profile], professor of law at Washburn University in the op-ed Constitutional Enforcement in Tunisia, Yemen, and Egypt [JURIST op-ed].




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Federal judge dismisses government surveillance suit for lack of standing
Matt Glenn on February 2, 2011 8:45 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] granted summary judgment [opinion, PDF] Monday in favor of the government in CCR v. Obama [case materials], ruling that the Center for Constitutional Rights (CCR) [advocacy website] lacked standing to challenge the legality of information obtained by Bush-era warrantless surveillance programs [JURIST news archive]. CCR argued that the Terrorist Surveillance Program (TSP) and Protect America Act (POA) [S 1927 materials], which allowed the National Security Agency (NSA) [official website] to wiretap suspected terrorists without a warrant, chilled the CCR's ability to speak freely with its clients and probably intercepted communications that were subject to the attorney-client privilege. Judge Vaughn Walker, noting that the TSP was discontinued in 2007 and the POA expired in 2008 [JURIST report], ruled that CCR lacked standing to challenge the programs since it could not show its communications had actually been intercepted as required to state a claim under the Foreign Intelligence Surveillance Act (FISA) [text] or that it had suffered any harm. Walker explained: "In short, plaintiffs have not shown that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct, especially in light of the clear precedent requiring that the allegations of future injury be particular and concrete. Plaintiffs have therefore failed to establish standing for their First Amendment claim" [citations omitted]. CCR Senior Attorney Shayan Kadidal expressed displeasure with the ruling, saying [press release], "It is astonishing that President Obama's administration continues to fight to hold on to the fruits of a patently illegal surveillance program, even where that surveillance was directed at attorneys engaged in suing the government."

In October, the Supreme Court denied certiorari [JURIST report] in a case brought on behalf of CCR lawyers who sought to learn under the Freedom of Information Act (FOIA) whether the NSA had recorded their conversations with clients detained at Guantanamo Bay [JURIST news archive]. The petition for certiorari followed a 2009 decision [JURIST report] by the US Court of Appeals for the Second Circuit [official website] that a FOIA exception allows the NSA and Department of Justice (DOJ) [official website] to withhold information or confirmation of the existence of information obtained by an intelligence program. In 2009, former DOJ attorney John Yoo defended the use of warrantless wiretaps, saying laws preventing them were outdated and contributed to the government's inability to prevent the 9/11 terrorist attacks. In April 2009, the DOJ announced that it had limited [JURIST report] the NSA's electronic surveillance after finding the NSA had committed privacy violations, but maintained that the information being received was still important.




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HRW calls for end to police violence in Tunisia protests
Zach Zagger on February 2, 2011 7:15 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] has called for an end to police attacks and an investigation into the deaths of protesters in Tunisia. The protest movement in Tunisia ousted former president Zine Al Abidine Ben Ali [BBC profile], sending him into exile, and the UN reported this week that at least 219 have died as a result of the protests, including 72 killed in prison riots. In two reports this week, HRW is calling on the transitional government to investigate incidents of police violence against protesters and end police brutality [HRW reports]. It claims that a vast majority of protester deaths are due to police gunfire on crowds. They are urging the government to punish police action that goes beyond what is necessary to perform their duty. Eric Goldstein, deputy Middle East and North Africa director, issued a statement:
Things are moving fast in Tunisia, but finding out who opened fire on demonstrators and why can't wait. The units and commanders responsible for these apparently unlawful killings should be identified and held accountable.
A unity government has taken control and the new Prime Minister Mohammed Ghannouchi has promised that there will be elections within six months.

Last week, Tunisia's Justice Minister Lazhar Karoui Chebbi announced that the country has issued an international arrest warrant [JURIST report] for ousted president Ben Ali. He, 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. Earlier this month, 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. Also, UN Secretary-General Ban Ki-Moon [official website] has urged government leaders in Tunisia to initiate dialogue between all sides in an attempt to restore the 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.




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France authorities arrest Srebrenica massacre suspect
Andrea Bottorff on February 1, 2011 2:49 PM ET

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[JURIST] French authorities announced Tuesday the identity of a Serbian man arrested a day earlier and suspected of participating in the 1995 Srebrenica massacre [JURIST news archive] in Bosnia, where a total of 8,000 Bosnian Muslims were killed. Milorad Momic, who has allegedly been living under a false name in France, is a suspected former member of the Serbian paramilitary group, the Scorpions [JURIST news archive], which took part in the massacre. French police officers arrested Momic on Monday under an international arrest warrant [AFP report], and he may be extradited to Serbia to face trial for crimes against humanity. Prosecutors believe that Momic is part of a Scorpion group that videotaped the murder [JURIST report] of Bosnian Muslims near Srebrenica. The graphic 1995 video [JURIST video; WARNING: this video may be disturbing to some viewers] first surfaced in 2005 during the trial of Slobodan Milosevic [JURIST news archive] by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. A French judge will decide Thursday whether to extradite [Bloomberg report] Momic to Serbia.

Serbia has undertaken an ongoing effort to apprehend those responsible for the atrocities that occurred in the region during the 1992-95 Bosnian civil war [JURIST news archive]. Suspected Bosnia and Herzegovina (BiH) war criminal Dragan Crnogorac was arrested [JURIST report] in November in connection with the Srebrenica massacre. In August, the Court of Bosnia and Herzegovina [official website] issued genocide charges [JURIST report] against four former Bosnian Serb soldiers, accusing them of participating in the murder of more than 800 Bosnian Muslims during the massacre. In April, the court convicted [JURIST report] two men of genocide, Radomir Vukovic and Zoran Tomic, for their roles in the massacre and sentenced each to 31 years imprisonment. The BiH war crimes court was set up in 2005 to relieve the caseload of the ICTY and is authorized to try lower-level war crime suspects.




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UN rights chief offers Haiti assistance with Duvalier prosecution
John Paul Putney on February 1, 2011 2:38 PM ET

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[JURIST] The UN High Commissioner for Human Rights, Navi Pillay [official website], offered technical assistance [press release] on Tuesday to Haitian authorities in the prosecution of former Haitian president Jean-Claude Duvalier [BBC profile; JURIST news archive] for serious human rights violations. Pillay urged prosecutors to move forward, indicating that violations like torture, extrajudicial killings and rape are not subject to a statute of limitations [UN News Centre report]. The charges stem from alleged abuses that occurred from 1971 to 1986 when Duvalier was in power in Haiti. Pillay called on Haiti to provide justice to the thousands who suffered [Reuters report] well-documented violations.

Last month, Amnesty International (AI) [advocacy website] announced [press release] that Haitian authorities will investigate crimes committed against humanity [JURIST report] allegedly committed under the rule of Duvalier. The announcement followed the filing of criminal complaints [JURIST report] against Duvalier by four people, including former UN spokesperson Michele Montas. Duvalier was