March 2011 Archives


Microsoft to file anti-competition complaint against Google
Dan Taglioli on March 31, 2011 3:34 PM ET

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[JURIST] Microsoft [corporate website] announced Wednesday it will file a formal complaint [corporate blog] with the European Commission (EC) [official website] detailing alleged anticompetitive practices by Google [corporate website]. Microsoft claims Google has engaged in "a broadening pattern of conduct aimed at stopping anyone else from creating a competitive alternative" to Google's products and services in Europe, where it controls over 90 percent of the search market. Among the "concerns" cited by Microsoft are Google's technical restrictions on YouTube [corporate website], acquired by the search giant in 2006. Some restrictions prevent competing search engines from properly accessing the site for search results, and others deny permission for Microsoft's Windows Phones to operate properly with YouTube while allowing Google's own Android phones and Apple [corporate website] iPhones full access. Microsoft also points to Google's plan for exclusive access by its search engine to the fruits of Google's massive and controversial book-scanning initiative [Google Book Search website], as well as contractual prohibitions place by Google on advertisers and leading Web sites in Europe. Finally, Microsoft claims that Google discriminates against potential competitors through algorithmic promotion or demotion of various advertisements, making it more costly to attain prominent placement for those ads.

Google has been facing an ongoing investigation [JURIST report] by the EC over allegations of manipulation of search results to highlight Google's own products and services. The company has faced separate antitrust inquiries in Italy, Germany and France in addition to the EC probe, in which Microsoft-owned Bing subsidiary Caio was one of the original complainants. Microsoft's Wednesday announcement of a formal complaint against Google came the same day the US Federal Trade Commission (FTC) [official website] announced a settlement [JURIST report] with the company over charges that it breached consumer privacy rights and was misleading during the launch of its social networking platform, Google Buzz [website]. These reports come on the heels of last week's New York court ruling rejecting a proposed settlement [JURIST report] in the 2005 suit brought by authors and publishers over the Google Book Search project. Additionally, in October Canadian Privacy Commissioner Jennifer Stoddart [official website] announced that Google had violated [JURIST report] the country's Personal Information Protection and Electronic Documents Act [text, PDF] by unintentionally capturing personal information while taking pictures for its Google Street View feature [website]. Investigations were also initiated in Australia, South Korea and Spain [JURIST reports].




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Syria president forms committee to consider ending emergency law
Daniel Makosky on March 31, 2011 2:47 PM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile] on Thursday ordered the formation of a committee that will evaluate possible elimination of the country's 48-year-old state of emergency law. The panel will be composed of legal experts and charged with examining potential legislative measures [AP report] that would simultaneously preserve national security and allow the revocation of the emergency law, which permits arrest without charge and bans political protests. The announcement may be an effort to appease demonstrators, whose activity has increased in recent weeks, while also conveying that any forthcoming reforms will proceed at a gradual pace. The committee is expected to complete its report by April 25.

Al-Assad announced last week that the government would consider ending the state of emergency [JURIST report]. Also last week, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country last week, the government freed 260 political detainees [AFP report] in an overture to the protesters. Last month, Syria appeared to be lifting the four-year-old ban [JURIST report] on social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] as a concession to avoid popular upheaval [DP report]. The Syrian protests may have been inspired by the recent unrest in Egypt, where nearly 400 people were killed and 5,500 were wounded during three weeks of protests that led to the February resignation [JURIST report] of former president Hosni Mubarak [Al Jazeera profile].




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Federal appeals court upholds EPA cap on vehicle emissions
Jennie Ryan on March 31, 2011 1:17 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday upheld [opinion, PDF] an approval by the Environmental Protection Agency (EPA) [official website] of caps on motor vehicle emissions in California. The court held that no abuse of discretion had occurred, citing the broad discretion which must be afforded to a government agency's interpretations of its own regulations as its reason for upholding the EPA's decision. A coalition of environmental groups, including the National Resource Defense Council [official website], originally filed suit alleging the EPA's determinations were arbitrary, capricious, and contrary to the law because the EPA failed to consider attainment demonstrations of the approved limitations. The coalition was concerned that the caps did not adequately address the issues of air pollution faced by people living in close proximity to California highways. The EPA made the determination of the adequacy of the emissions limits as part of the approval process for a broader state implementation plan relating to transportation. It is unclear whether the coalition will petition the US Supreme Court [official website] for review.

This case stems from the controversial ability of the EPA to control the regulation of greenhouse gases. Last year, the US Senate [official website] defeated a resolution [materials; JURIST report] aimed at limiting the ability of the EPA to regulate greenhouse gas emissions under the Clean Air Act [materials]. The US Supreme Court affirmed the EPA's ability to regulate carbon emissions under the Clean Air Act in its 2007 ruling in Massachusetts v. Environmental Protection Agency [Cornell LII backgrounder; JURIST report]. In its ruling, the court held that if the EPA could show a link between greenhouse gas emissions and public health and welfare, then the act gives it the power to regulate emissions. The EPA announced last December [JURIST report] that it had found that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution.




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Ohio legislature passes bill limiting state worker collective bargaining
Julia Zebley on March 31, 2011 1:02 PM ET

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[JURIST] The Ohio Senate [official website] on Thursday passed Senate Bill 5 [text, PDF], which alters Ohio labor law and restricts the collective bargaining abilities of unions for public sector workers. The bill was approved in the Senate by a vote of 17 to 16, shortly after a House vote of 53 to 44 [unofficial votes]. In February, the legislation was protested by 4,000 union members [The Plain Dealer report] at the Ohio capitol building marking the largest union-backed protest in over a decade. A summary of the bill [text] details that unions can only collectively bargain for wages and equipment for personal safety and that public employees cannot strike. Additionally, the bill allows a union to be decertified with a petition signed by 30 percent of members as opposed to the prior standard of 50 percent and requires most state employees to be paid based on performance. Furthermore, Senate Bill 5 creates a ban on nonunion members paying any part of union dues and takes away any benefits from seniority. The Ohio Democratic Party [advocacy website] and union leaders are attempting to create a public referendum to repeal the law [The Columbus Dispatch report]. To do this, they will need a petition with 230,000 signatories within 90 days of the bill being signed. Governor John Kasich [official website] is expected to sign the bill on Friday afternoon.

Ohio is the most recent in a string of anti-union laws sweeping the US. Yesterday, the New Hampshire House of Representatives [official website] passed an amendment to their current budget that would require public employees to make concessions automatically [AP report] or become at-will employees. Earlier this month Wisconsin Governor Scott Walker [official website] signed a bill [JURIST report] that limits the collective bargaining rights of public sector employees. The law is currently enjoined, but legislators have gone forward with publishing it [JURIST report], a step toward the law's enforcement, despite judicial concern. Indiana Democrats defeated an anti-union bill [Indiana Star report] by fleeing the state until the bill missed a procedural deadline. Legislation is pending in Nebraska [Daily Nebraskan report] to prohibit state employee collective bargaining and to dismantle the Commission of Industrial Relations (CIR) [official website], a non-partisan arbiter in state labor disputes. Measures limiting unions are also in committees in Michigan, Tennessee, and Florida.




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Canada high court to review anti-prostitution laws
Alexandra Malatesta on March 31, 2011 1:01 PM ET

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[JURIST] The Supreme Court of Canada [official website] agreed Thursday to review a B.C. Court of Appeal [official website] decision allowing a challenge to the country's anti-prostitution laws. The appeals court had set aside a lower court ruling [judgments] denying standing to Sheryl Kiselbach, a former sex worker in Vancouver's Downtown Eastside, and the federal attorney general appealed. Kiselbach filed the challenge in 2007, along with Downtown Eastside Sex Workers United Against Violence in Society. Kiselbach's lawyer contends that denying standing would erase 30 years of abuse and prosecution [CP report] suffered by Kiselbach, who allegedly left the sex trade to overhaul Canada's anti-prostitution laws.

In September, the Ontario Superior Court of Justice [official website] struck down several provisions of Canada's anti-prostitution laws, citing the danger they generate for sex workers, but a stay was issued [JURIST reports] pending appeal. That suit was also launched in 2007 by the Sex Professionals of Canada [advocacy website] challenging three provisions [JURIST report] of the Canadian Criminal Code [text] as inconsistent with the Canadian Charter of Rights and Freedom [text]. While prostitution itself is not illegal in Canada, § 210, § 212 and § 213 of the Criminal Code prohibits the keeping of "common bawdy houses," engaging in communications for the purpose of soliciting sex and living "on the avails" of the sex trade.




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Federal judge allows suit over Guantanamo prosecutor termination
Daniel Richey on March 31, 2011 12:00 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] ruled [opinion, PDF] Wednesday that a lawsuit [complaint, PDF] against the Library of Congress (LOC) [official website] filed on behalf of former Guantanamo prosecutor and LOC employee Col. Morris Davis [official profile, PDF] can proceed. Davis, who was employed at the LOC's Congressional Research Service (CRS) [official website], resigned as the military commissions' chief prosecutor in October 2007. Following his resignation, Davis became an outspoken critic of the commissions, writing articles, giving speeches and testifying before Congress that the system is fundamentally flawed. The American Civil Liberties Union (ACLU) [advocacy website] filed suit [JURIST report] last January, alleging that the LOC violated Davis' First and Fifth Amendment [texts] rights when it terminated him after he authored a high-profile piece criticizing the military commission system [text] for the Wall Street Journal [official website]. Observing that Davis' complaint articulated legitimate First and Fifth Amendment claims, Judge Reggie Walton denied motions by Librarian of Congress James Billington [official website] and CRS Director Daniel Mulhollan to dismiss and to stay litigation. Aden Fine, staff attorney with the ACLU Speech Privacy and Technology Project, welcomed the ruling [press release], saying "[i]ndividuals do not surrender their First Amendment rights to comment on matters of public interest when they become public employees."

Davis drew attention to the alleged iniquities of the military commissions system in 2007, when he penned a noted op-ed [text] for the New York Times [official website] about his experience as chief prosecutor. Later that year, Davis publicly said that he was pressured to use classified evidence [JURIST report] against defendants while heading serving as chief prosecutor at Guantanamo. He further claimed that the push to use classified evidence stemmed from certain military officials' desire to keep the trials closed and complained that Brig. Gen. Thomas Hartmann [official profile], legal adviser to the Convening Authority [official backgrounder] for the trials, should not have been supervising his work. The issue played a role in his resignation [JURIST report].




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Czech Constitutional Court overturns parts of data retention law
Sarah Paulsworth on March 31, 2011 9:49 AM ET

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[JURIST] The Czech Republic's Constitutional Court [official website, in Czech] on Thursday overturned [press release, in Czech] parts of a controversial data retention law that obligated telecommunications companies to maintain records of their customers' internet and telephone usage. The court found that paragraphs 3 and 4 of § 97 of the Electronic Communications Act [official materials], which compelled telecommunications companies to keep records of their customers' calls, faxes, text messages, internet activity, and emails for up to 12 months, are unconstitutional [text, PDF, in Czech]. The Czech law stems from a European Union directive [text, PDF] requiring member states to gather telecommunications data in an effort to combat terrorism and organized crime. The retained data at issue was not the actual content of the communications [CNA report], but rather information showing when and with whom people were communicating.

The balancing of telecommunications monitoring for security purposes and privacy concerns has been a struggle post 9/11 in both Europe and the US. Last year, Germany's Federal Constitutional Court overturned a law [JURIST report] that required telecommunications providers to store information on telephone calls, e-mails, and Internet use for six months for use in possible terrorism investigations, citing privacy issues. In January 2010, the US Court of Appeals for the Second Circuit [official website] ruled [JURIST report] that the National Security Agency (NSA) and the Department of Justice (DOJ) [official websites] are not required to confirm or deny the existence of electronic surveillance records under the Freedom of Information Act (FOIA) [text]. In April 2009, the DOJ announced that it had limited [JURIST report] the NSA's electronic surveillance, but maintained that the information being received was still important. In 2006, it was revealed that the NSA was collecting phone records [JURIST report] was from major telephone companies to study the calling patterns of millions of Americans in an effort to detect terrorist activity.




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US to seek second term on UN rights council
Ann Riley on March 31, 2011 8:24 AM ET

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[JURIST] The US Department of State [official website] announced on Wednesday that it would pursue a second term [press release] on the UN Human Rights Council (UNHRC) [official website]. In continuing its membership, the US intends to further its stand against the council's "biased and disproportional focus on Israel," and push the council to "address a broad range of urgent and serious human rights concerns worldwide." The State Department highlighted the accomplishments [fact sheet] of the UNHRC over the last two years, citing the council's deepened engagement in human rights situations worldwide, initiation of concrete action to drive human rights priorities, and defense of core human rights principles. State Department Acting Deputy Spokesman Mark Toner expressed the US government's commitment to human rights, saying:
We believe that US engagement in the Human Rights Council has directly resulted in real progress. In our two years on the Council, we've not been happy with every outcome, and have firmly denounced Council actions we disagree with, but the Council has made important strides. Much work remains to be done for the Human Rights Council to sustain the gains of the last two years and to fully realize its potential, and the United States looks forward to continuing our efforts to do so.
Last week's 16th session of the UNHRC [press release] adopted 40 resolutions promoting human rights, appointed a Special Rapporteur to assess the human rights situation in Iran and dispatched an independent commission to the Ivory Coast [JURIST reports] to investigate the violation of human rights following the presidential elections. Also, the US led an unprecedented effort to have 85 member-states sign on to a statement supporting the human rights of lesbian, gay, bisexual and transgendered people.

The US was among 18 countries elected [JURIST report] to the council in May 2009. When the US first took its place [JURIST report] on the UNHRC, the Obama administration faced opposition [Reuters report] from pro-Israel groups. Several other human rights organizations criticized [JURIST report] the council's election process, alleging vote trading and a lack of effective candidates. In April 2009, the State Department released [JURIST report] its commitments and pledges to human rights in anticipation of May election. The US announced its intent to seek a seat on the council [JURIST report] earlier that month, hoping to affect more change by working from inside the council than by boycotting the effort. The UNHRC was created [JURIST report] in 2006 to replace the much-criticized Committee on Human Rights, at which time the Bush administration declined to seek a council seat or participate in its proceedings due to a perceived anti-Israeli sentiment by the UNHRC. The US's current term on the council will expire in 2011.




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FTC settles with Google on charges of 'Buzz' privacy violations
Ann Riley on March 31, 2011 7:49 AM ET

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[JURIST] The Federal Trade Commission (FTC) [official website] announced Wednesday that it has reached a settlement [press release] with Google [corporate website, JURIST news archive] over charges that the Internet giant breached consumer privacy rights and was misleading during the launch of its social networking platform, Google Buzz [website]. The FTC complaint [text, PDF] alleges that when Google launched Buzz through its web-based email, Gmail, users were automatically enrolled without their consent and were unable to decline or leave the social network and that the Buzz privacy controls were confusing. The FTC also charged Google with asserting false claims to the Department of Commerce [official website] that it was adhering to the substantive privacy requirements of the US-EU Safe Harbor Framework [materials]. Under the proposed settlement [text, PDF], Google must obtain users' consent before sharing their information with third parties or using it in any of its new products or services. Google must also establish a comprehensive privacy program and submit to regular, independent audits of its privacy and data protection practices for the next 20 years. Google is further prohibited from misrepresenting its privacy and confidentiality policies to consumers or its compliance with privacy and security programs. If Google fails to comply with the settlement, it may be subject to a $16,000 fine per violation [Reuters report]. FTC Chairman Jon Leibowitz [official profile] said:
When companies make privacy pledges, they need to honor them. This is a tough settlement that ensures that Google will honor its commitments to consumers and build strong privacy protections into all of its operations.
Google Director of Privacy, Product & Engineering Alma Whitten apologized [text] and expressed the company's commitment to ensuring individual privacy. Google previously reached a settlement [text, PDF; JURIST report] in a class action lawsuit in response to a complaint [text, PDF] alleging that the Buzz application exposed private user data, including contact lists, to other Gmail users. Under the earlier settlement, Google will place $8.5 million dollars into a common fund to distribute to organizations that provide education regarding Internet privacy. Google stressed that the settlement did not mean that the company was admitting liability for the privacy breach and that the company has since resolved all privacy issues with the Buzz application.

Google has recently faced a number of allegations of violating privacy laws, both in the US and abroad. In November, the Federal Communications Commission (FCC) [official website] confirmed that it is investigating [JURIST report] Google to determine if it violated communications laws when its Street View [JURIST news archive] vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. In October, the FTC ended an inquiry [JURIST report] into the company's data collection through Street View cars after Google assured the FTC that it did not use any of the collected data and announced that it was committed to compliance with privacy laws [text], instituting new training on privacy principles and appointing a new director of privacy. In addition to investigations within the FCC and the FTC, Google has come under investigation for privacy breaches relating to its Street View program in the UK, France, Canada, Australia, South Korea and Spain [JURIST reports]. Most recently, a Berlin court ruled [judgment, in German; JURIST report] that Google Street View is legal in Germany. The ruling was narrowly focused on property rights and did not address larger data protection issues the company is currently confronting.




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Supreme Court hears arguments on Telecommunications Act, drug labeling
Brian Jackson on March 30, 2011 4:45 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in the consolidated cases of Isiogu v. Michigan Bell Telephone Co. and Talk America Inc. v. Michigan Bell Telephone Co. [oral argument transcript, PDF] on whether, pursuant to the Telecommunications Act of 1996 [text, PDF], a state utility commission may require an incumbent carrier like Bell Telephone to provide connectivity to its network at cost. The US Court of Appeals for the Sixth Circuit had reversed [opinion, PDF] a previous Federal Communications Commission (FCC) [official website] ruling that the state commission did have that power. The dispute centers on whether so-called "entrance facilities may function as interconnectivity junctions to the incumbent network. The FCC, in a prior order, had ruled that entrance facilities need not be provided to competitors at cost, but that interconnectivity facilities must be provided at cost. Petitioners' argument centers on the plain meaning of the terms, that an entrance facility can be used to link two networks for interconnectivity, and deference to the FCC, which also filed an amicus brief [PDF] with the court.

In the consolidated cases Actavis Elizabeth, LLC v. Mensing, Actavis v. Demahy and PLIVA v. Mensing [oral argument transcript, PDF], the court heard arguments on whether generic drug manufacturers can be held liable for not including more information on a label than mandated by the Food and Drug Administration (FDA) [official website]. In the opinion below, the US Court of Appeals for the Fifth Circuit held [opinion, PDF] that, just as claims against manufacturers of name-brand drugs are not preempted by the Food Drug and Cosmetic Act (FDCA) [materials], claims against manufacturers of generic drugs are similarly not preempted. Petitioners argue mainly that the Hatch-Waxman Act [21 USC § 355] mandates that generic drugs be labeled with the same warnings as name-brand drugs, and thus they cannot be held liable at the state level for a federally-imposed conformity. Because this is an untenable situation, Petitioners argue that federal preemption should apply, and attempted to distinguish this case from the court's decision in Wyeth v. Levine [JURIST report], by saying that, unlike generics, manufacturers of name-brand drugs had the "ability, had the obligation, to ... actually change the label."




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Egypt military introduces interim constitution
Daniel Makosky on March 30, 2011 1:57 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] on Wednesday unveiled an interim constitution that allows the council to retain control over the country until an elected government is installed. The document vests the military council with presidential powers [Al-Ahram report], including the abilities to introduce legislation, veto existing laws and act as Egypt's representative to the international community. Among the constitution's 62 articles, nine of which were popularly approved [JURIST report] earlier this month, are provisions mandating presidential term limits, vice presidential appointments, judicial oversight of elections and the formulation of a 100-member committee to be charged with drafting a permanent replacement constitution [AP report] that will then be submitted for approval via referendum. Several aspects from the preceding constitution, which was suspended [JURIST report] in February, are continued in the interim version, namely the retention of Islamic Sharia law [CFR backgrounder; JURIST news archive] and of Islam as the national religion.

The military council announced earlier this week that it will lift the state of emergency [JURIST report] prior to the September parliamentary elections, and that requirements for the registration of political parties have been lessened. The constitutional referendum held earlier this month is considered by some to be a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against former president Hosni Mubarak [Al Jazeera profile]. Both the National Democratic Party and the Muslim Brotherhood supported the amendments to the Egyptian Constitution [text], which included mandating new criteria for potential presidential candidates.




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Dutch court orders 'hate trial' to go ahead over accused politician's objections
Ashley Hileman on March 30, 2011 12:53 PM ET

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[JURIST] A panel of judges for the Amsterdam District Court on Wednesday ordered that the trial of right-wing Dutch politician Geert Wilders [personal website; JURIST news archive], on charges [prosecution materials, in Dutch] of making anti-Islamic statements, go ahead over his objections that the court was the improper venue for his case. Last month, the court granted Wilders the right to set out the objections [BBC report] he had made during the initial trial, which was postponed following the dismissal of the original panel of judges [JURIST report] amidst allegations of bias. However, this panel rejected Wilders' objections [AP report], ruling that the Amsterdam court has the authority to judge the case, given that the alleged statements, which constitute the offenses with which Wilders is charged, were committed within its jurisdiction. Wilders is alleged to have made inflammatory remarks against Islam. In one statement, he purportedly called the religion "fascist" and compared the Koran to Hitler's book Mein Kampf. While the court will allow prosecution to continue for any statements Wilders made likening Islam to Nazism, it dropped a complaint against him for referring to the Koran itself as "fascist," holding that prosecutors were precluded from including statements comparing Islam to fascism alone. Wilders maintains that his remarks were made as part of a legitimate political debate and are protected by his right to free speech. Wilders trial is scheduled to continue on April 13, with expectations for a verdict in June. He faces up to one year in prison, but it is more likely that he will be fined if found guilty.

The case against Wilders has suffered a number of setbacks. Prior to their dismissal, the original 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 initially 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. Wilders has consistently been an outspoken opponent of immigration, especially that of Muslims, previously announcing [JURIST report] that he would support the current Dutch cabinet in exchange for promises to legislate a curtailment on immigration and a ban on the burqa [JURIST news archive] and other full Islamic veils.




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Federal appeals court overturns release order for Yemeni Guantanamo detainee
Dan Taglioli on March 30, 2011 12:49 PM 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 granting release to Yemeni Guantanamo Bay detainee Uthman Abdul Rahim Mohammed Uthman. Uthman's 2004 habeas corpus petition challenging his basis for detention was granted when the US District Court for the District of Columbia [official site] determined that the government had failed to prove by a preponderance of the evidence that Uthman had received and executed orders from al Qaeda. The appeals court rejected this "command structure test" used by the lower court and struck down the ruling, blocking Uthman's release. The appeals court found that decisions made since Uthman's petition dictate that, regarding the detention authority granted by the 2001 Authorization for Use of Military Force (AUMF) [S.J.RES.23 text, PDF], determinations of whether individuals are al Qaeda members must employ a functional approach on a case-by-case basis, rather than the formal approach used in Uthman's case. Examining the evidence, appeals court then found that
Uthman's account piles coincidence upon coincidence upon coincidence. Here, as with the liable or guilty party in any civil or criminal case, it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places - a kind of Forrest Gump in the war against al Qaeda. But Uthman's account at best strains credulity; and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al Qaeda. When presented with similar circumstantial evidence in prior cases, we have had no trouble reaching the conclusion that the detainee more likely than not was part of al Qaeda...So too here.
Uthman was captured near the Pakistan-Afghan border in December 2001 and has been held at Guantanano for over nine years. Uthman has denied the claims made against him [NYT backgrounder] as listed by the Combat Status Review Tribunal and the Administrative Review Board [official site] that reviewed his case.

Federal courts have struggled with habeas corpus rights for Guantanamo detainees. In September, Kuwaiti Guantanamo detainee Fawzi Khalid Abdullah Fahad al Odah petitioned [text, PDF; JURIST report] the US Supreme Court [official website] to reverse a federal appeals court decision that denied him habeas corpus relief. The DC appeals court 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 DC district court 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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Arizona governor outlaws abortions based on sex, race
Sarah Posner on March 30, 2011 12:39 PM ET

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[JURIST] Arizona Governor Jan Brewer [official website] on Tuesday signed into law a bill outlawing abortions [JURIST news archive] performed based on the sex or race of the fetus. Representative Steve Montenegro sponsored HB 2442 and HB 2443 [legislative materials], which separately outlaw abortions based on the child's sex or race. Under the new abortion law, a physician or health professional who does not report known or suspected violations will face felony charges and civil fines and may be liable for damages. The bill states:
Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman's health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child's sex or race by prohibiting sex-selection or race-selection abortions.
The law is set to come into effect 90 days after the end of the current legislative term.

Several state legislatures have recently passed restrictions on abortions. Last week, South Dakota Governor Dennis Daugaard [official website] signed [JURIST report] HB 1217 into law, requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Also in March, the Missouri House of Representatives [official website] voted in favor of legislation restricting late-term abortions [JURIST report] and imposing penalties on doctors who fail to comply with the new restrictions. The legislation, which is slated to become effective at the end of August, bans abortions of "viable" fetuses. The Oklahoma House of Representatives [official website] voted in March to approve a bill that would ban abortion after 20 weeks of gestation [JURIST report]. Last month, the Kansas House of Representatives [official website] also approved several new restrictions on abortion [JURIST report].




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Wisconsin judge clarifies ruling blocking union bargaining law
Matt Glenn on March 30, 2011 9:06 AM ET

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[JURIST] A judge for Wisconsin's Dane County Circuit Court [official website] issued an order [text, PDF] Tuesday prohibiting implementation of the state's new Budget Repair Bill [Senate Bill 11 text, PDF]. The order emphasizes that a temporary restraining order [JURIST report] issued March 18 prohibits not only publication of the bill, but implementation of its provisions as well. Judge Maryann Sumi warned state officials [Wisconsin State Journal report] that any attempt to implement the bill would expose them to sanctions. Government officials caused the state's reference bureau to publish the bill [Act 10 text, PDF] on Friday. Republicans claim they did not violate the restraining order because only Secretary of State Doug La Follette [official website] was named in the order and not the reference bureau. Some Republican legislators argue that the law went into effect Saturday. The restraining order stems from a lawsuit [complaint, PDF; JURIST report] filed earlier this month by District Attorney Ismael Ozanne [official website] claiming that Republican legislators passed the bill in violation of Wisconsin's open meetings law [text] which requires 24-hour notice of public meetings in non-emergency situations. Nothing in the judge's orders prohibits the legislature from passing the law, which strictly curtails public unions' collective bargaining rights, with proper notice. State officials said they are still considering how to respond to Tuesday's order.

Ozanne is the second public official to mount a legal challenge to the bill, following a similar suit [complaint, PDF] filed earlier this month by Dane County Executive Kathleen Falk [official profile]. Falk's suit came immediately after Wisconsin Governor Scott Walker [official website] signed the bill into law [JURIST report] earlier in the month. The provisions limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since February 15, when SB 11 was introduced to address the state's $3.6 billion deficit. Earlier this month, a Wisconsin judge ruled that the state capitol building must remain open [JURIST report] to the public during business hours, despite an attempt to close the building to protesters who had occupied it as part of a protest against the proposed restrictions on collective bargaining. The Wisconsin State Employees Union Council 24 [advocacy website] filed the petition earlier in the day in reaction to Walker ordering the capitol building closed and removing protesters.




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Somaliland opens maximum security prison for pirates
Julia Zebley on March 30, 2011 8:28 AM ET

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[JURIST] Somaliland [official website; BBC profile], an unrecognized independent region in northern Somalia [BBC profile], opened a maximum security prison [Somaliland Press report] for pirates [JURIST news archive] on Tuesday. The prison, refurbished by a USD $1.5 million grant from the UN Office on Drugs and Crime (UNODC) [official website], is currently only housing prisoners tried in Somalia [Somaliland Press report], with indications that this will be the prison's policy, citing transport as an issue. There is speculation that this may jeopardize Seychelles' continued prosecution of pirates [JURIST report]. The UNODC indicated that future prisons may be opened [press release] in Puntland [BBC Profile], as well as several more in Somaliland. Although the vast majority of captured pirates are Somali, Somalia has not had a functioning central government since 1991, so prosecution and detention within the nation has been difficult.

Piracy near the continent of Africa has become an increasingly serious problem for private shipowners and many nations. An increasing number of nations have been willing to prosecute pirates captured in international waters. In January, the UN Secretary-General's special adviser on maritime piracy Jack Lang [official profile] proposed an international piracy court [JURIST report]. Earlier this month, US federal courts convicted and indicted [JURIST reports] two sets of Somali pirates. In February, Malaysia charged several suspected pirates [JURIST report]. A German court began the trial [JURIST report] of 10 suspected Somali pirates in that country's first piracy trial in 400 years in November. A Yemeni court sentenced [JURIST report] a group of 10 Somali pirates to five years in prison. Prior to these and other nations trying suspected pirates, Kenya was conducting the bulwark of piracy trials. However, the high court of Mombasa ruled that Kenya does not have jurisdiction [JURIST report] outside of its national waters, releasing nine suspected Somali pirates.




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Rwanda genocide tribunal sentences former mayor to life in prison
Julia Zebley on March 30, 2011 7:24 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday sentenced [press release] Jean-Baptiste Gatete to life imprisonment, the highest sentence meted out by the ICTR, for his involvement in the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Gatete, the former Mayor of Murambi Commune in Byumba prefecture, has been on trial since October 2009 and was one of several prominent cases not transferred to Rwandan authorities [JURIST reports] in June 2010. He was found guilty on all charges: genocide, or, in the alternative, complicity in genocide; conspiracy to commit genocide; and the crimes against humanity of extermination, murder, and rape. It was held that Gatete both murdered, and carried out orders to rape and murder, thousands of Tutsi citizens. Minister of Justice and Attorney-General for Rwanda Tharcisse Karugarama said the government was pleased with the verdict [New Times report]. The official record will be posted [case materials] on the ICTR's website in the future.

As leader of the Interahamwe, a Hutu paramilitary group, Gatete was found responsible for the massacre of 6,000 Tutsis who had taken refuge in Kiziguro and Mukarange Churches, as well as ordering the widespread rape of women in the parishes. Gatete was arrested [UN News Centre report] in the Republic of Congo in September 2002 and was transferred by Congolese authorities to the UN detention facility in Arusha, Tanzania. In accordance with the completion strategy [text, PDF] of the ICTR, the prosecution requested to transfer Gatete to the national jurisdiction of Rwanda, but the request was denied in November 2008. The ICTR has received criticism for its refusal to transfer cases to Rwanda. Rwandan Prosecutor General Martin Ngoga addressed [press release] the UN Security Council [official website] in June and stated that the ICTR's decision not to transfer pending cases to Rwandan jurisdiction, including Gatete, undermined his country's judicial reforms and hindered national reconciliation.




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Supreme Court hears arguments on Wal-Mart class action suit, witness tampering law
Andrea Bottorff on March 29, 2011 2:49 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] in Wal-Mart v. Dukes [oral argument transcript, PDF], a gender discrimination class action lawsuit estimated to include more than 1.5 million women—the largest class action lawsuit in US history. The issues are (1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) [text] and, if so, under what circumstances; and (2) whether the class certification ordered under rule 23(b)(2) was consistent with rule 23(a). The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April. Counsel for the petitioner Wal-Mart argued that the certified class failed to meet cohesion requirements because of the diverse nature of managerial discretion in the individual stores nationwide:
The delegation of discretion in some ways is the opposite of cohesive claims that are common to everyone in the class. The common policies that the plaintiffs point to are either neutral and not argued to be discriminatory or they are affirmatively nondiscriminatory. The company has a very strong policy against discrimination and in favor of diversity.
Counsel for the respondent certified class argued that although the company did not have a "formal policy of discrimination," the management staff used a common policy that was discriminatory toward women seeking advancement within the company.

In Fowler v. United States [oral arguments transcript], the court heard arguments on whether a federal court can convict an individual of murdering a witness under the federal witness tampering statute [18 USC § 1512(a)(1)(C) text] without first proving that the victim provided evidence of a federal crime to authorities. The statute prohibits killing or attempting to kill a person with the intent to prevent the person from providing information about a federal crime to police or a court. The US Court of Appeals for the Eleventh Circuit ruled [decision, PDF] that Charles Fowler violated the statute by killing a police officer who had stopped Fowler and his accomplices while they were in a stolen vehicle containing drugs, had recently committed an interstate robbery and were planning a bank robbery. Fowler protested that prosecutors failed to establish that it was likely the officer would transfer information to federal investigators or that it was likely that a federal investigation would be opened. The court held, however, that prosecutors need only establish that the defendant killed the victim to prevent the communication of a possible federal offense and that they had met that burden. Counsel for the petitioner Fowler argued that the court should apply a narrower, "realistic likelihood" standard when determining if the victim would have provided information to federal authorities, rather than the government's vague, "reasonably possible" standard. Counsel for the respondent government replied that the reasonableness standard gives the jury discretion to determine whether a victim could have provided evidence to a federal agent, since it is not possible to know the "specific intent" of the deceased victim.




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Nokia files new round of patent suits against Apple
John Paul Putney on March 29, 2011 2:30 PM ET

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[JURIST] Finnish telecommunications company Nokia [corporate website] announced Tuesday that it filed another complaint [press release] against Apple [corporate website] with the US International Trade Commission (ITC) [official website] in addition to a lawsuit filed in Delaware. Nokia's newest complaint alleges Apple is violating seven patents "in virtually all of its mobile phones, portable music players, tablets and computers ... in the areas of multi-tasking operating systems, data synchronization, positioning, call quality and the use of Bluetooth accessories." The complaint comes in response to the ITC determination that Apple did not violate the patents [PC World report] involved in Nokia's original complaint [JURIST report] filed in October 2009. As to the ITC's decision announced on Friday, Nokia has indicated it will wait to "see the full details of the ruling before deciding on the next steps in that case." The ITC, composed of six members, is expected to decide whether it will review [Bloomberg report] Friday's decision within the next two months. Nokia acknowledged that with the present complaint it now has "46 Nokia patents in suit against Apple" literally around the world.

Nokia and Apple have been embroiled in litigation marked by trading accusations of patent infringement. In December, the litigation spread to Germany, the UK and the Netherlands where Nokia filed 13 patent infringement complaints [JURIST report] against Apple. Last May, Nokia filed a complaint [JURIST report] in the US District Court in the Western District for Wisconsin [official website] alleging that Apple iPad and iPhone 3G products infringe additional Nokia patents. Apple counter-sued last December, claiming Nokia had stolen 13 patents from the company.




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UN prosecutors demand life sentence for ex-Yugoslav army chief
Sarah Posner on March 29, 2011 12:43 PM ET

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[JURIST] UN prosecutors on Tuesday demanded that ex-Yugoslav army chief Momcilo Perisic [ICTY profile, PDF] receive a life sentence for war crimes and crimes against humanity. Perisic is on trial before the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], charged [indictment, PDF] with eight counts of crimes against humanity and five counts of war crimes. The charges [JURIST report] include murder, persecution on grounds of politics, race, or religion, and unjustified attacks on civilians in the early 1990s in conflicts with Croatia and Bosnia and Herzegovina. As well as being held individually responsible for these acts, Perisic was also charged with command responsibility for the actions of his subordinates under Article 7(3) [text, PDF] of the ICTY Statute. Closing arguments are expected to conclude this week.

Perisic's trial began [JURIST report] in October 2008. ICTY Prosecutor Mark Harmon said Perisic was one of the "principal collaborators" of late Yugoslav president Slobodan Milosevic [JURIST news archive], claiming in his opening statement that Perisic "created an environment of impunity, wherein his subordinates were encouraged and did persist to commit crimes, knowing there would be no consequences." Perisic turned himself in to the UN in 2005, surrendering to officials [JURIST reports] from the ICTY.




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Supreme Court rules against health care providers in drug pricing suit
Aman Kakar on March 29, 2011 12:23 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] unanimously in Astra USA v. Santa Clara County, CA [Cornell LII backgrounder] that health care providers that are third-party beneficiaries of a government contract may not sue drug companies for overpricing under federal law. The issue was whether health care providers who qualify for reduced-price drugs under § 340B of the Public Health Services Act [42 USC § 256b] could sue for a violation of an agreement between the federal government and drug manufacturers when they lack federal statutory authority to bring the action. Under the act, drug manufacturers must enter into contracts with the federal government that restrict the price that those manufacturers can charge to providers through the Medicaid system. The statute is silent on the topic of a private cause of action, but the US Court of Appeals for the Ninth Circuit held [opinion, PDF] that federal common law does in fact provide a cause of action under contract law where a third party beneficiary is injured by the drug manufacturer's breach. In an opinion by Justice Ruth Bader Ginsburg, the court rejected the Ninth Circuit's reasoning that third-party suits would spread the enforcement burden:
But spreading the enforcement burden is hardly what Congress contemplated when it made HHS administrator of the interdependent Medicaid Rebate Program and 340B Program. Suits by 340B entities would undermine the agency's efforts to administer these two programs harmoniously and uniformly. Notably, the Medicaid Rebate Program's statute prohibits HHS from disclosing pricing information that could reveal the prices a manufacturer charges for its drugs. Had Congress meant to leave open the prospect of third-party beneficiary suits by 340B entities, it likely would not have barred them from obtaining the very information necessary to determine whether their asserted rights have been violated.
The opinion stresses that the issue of inadequate enforcement authority was resolved by the Congress when it strengthened and formalized the enforcement authority of the Health Resources and Services Administration [official website], made the new adjudicative framework the proper remedy for complaints by third-party entities and rendered the agency's resolutions of the complaints binding. Justice Elena Kagan took no part in the decision of this case.

Santa Clara County [official website], which operates several health care providers had filed the suit against Astra and eight other pharmaceutical companies alleging they were overcharging the health care providers in violation of the Pharmaceutical Pricing Agreements. The county was seeking compensatory damages for breach of contract. Oral arguments [transcript, PDF] for the case were held in January. Astra argued [brief, PDF] that only Congress can provide a cause of action under a federal statute, and that this circumvention of Congressional intent will disrupt the statutory scheme and the Medicaid system. The county argued [brief, PDF] that as third-party beneficiaries, health care providers are entitled to enforce contracts and that such enforcement is necessary given the lack of oversight by the Federal government.




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Supreme Court rejects failure-to-train claim of wrongfully convicted man
Maureen Cosgrove on March 29, 2011 12:21 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 5-4 in Connick v. Thompson [Cornell LII backgrounder; JURIST report] that a district attorney cannot be held liable under § 1983 [text] for a failure to train subordinates, reversing a jury award of damages for a wrongfully convicted man. The respondent was found guilty of murder when he did not testify at trial because he had earlier been convicted of armed robbery at a trial during which prosecutors hid exculpatory evidence in violation of Brady v. Maryland [opinion text], which requires that the state disclose to the defense evidence in its possession that is favorable to the accused. After the evidence was discovered and shortly before his scheduled execution, Thompson was found not guilty. Thompson sued district attorney Harry Connick, alleging that Connick failed to adequately train prosecutors about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure in Thompson's robbery case. According to the statute, failure to train employees must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact," where a pattern of similar constitutional violations by untrained employees is "ordinarily necessary" to demonstrate deliberate indifference. In an opinion authored by Justice Clarence Thomas, the court determined that Connick was reasonably unaware of potentially similar Brady violations:
[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. ... Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.
Furthermore, "single incident" liability is not a valid exception to the required showing of a pattern of violations. Justice Antonin Scalia wrote a concurring opinion, joined by Justice Samuel Alito. Justice Ruth Bader Ginsburg, writing for the dissent, argued that failure to provide training in some circumstances could be so egregious such that a single violation resulting from the lack of training could be characterized as deliberate indifference to constitutional rights.

The Supreme Court on Tuesday also dismissed [opinion, PDF] a writ of certiorari in Tolentino v. New York [Cornell LII backgrounder; JURIST report] as improvidently granted. The court declined to address the issue of whether the exclusionary rule prohibits police from using a defendant's driving record compiled by the state's Department of Motor Vehicles (DMV) obtained after illegally stopping the defendant.




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Federal appeals court upholds secrecy provision of whistleblower law
Zach Zagger on March 29, 2011 10:58 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] dismissed [opinion, PDF] a claim led by the American Civil Liberties Union (ACLU) [advocacy website] upholding secrecy provisions of a federal whistleblower law. The case involved the Civil War-era False Claims Act (FCA) [text], which includes provisions authorizing private citizens, dubbed qui tam relators, to sue on behalf of the US accusing federal contractors of fraudulent claims against the government. The ACLU, together with the Government Accountability Project (GAP) and OMB Watch [advocacy websites], brought a facial constitutional challenge against the secrecy provisions of the the FCA that require the complaint to be sealed for up to 60 days so the government can decide whether to intervene and allow the government to move the court for extensions. The groups argued the provisions violate the First Amendment by infringing on the public's right of access to judicial proceedings and the qui tam relators' right to speak about their complaint, and that mandatory sealing strips the courts' inherent ability to decide whether to seal on a case-by-case basis. The appeals court, in a 2-1 decision, held that, even assuming the First Amendment right of access applies to qui tam actions, the sealing provisions address a compelling government interest of protecting the integrity of such proceedings and that the provisions were narrowly tailored to address issues in modern fraud allegation claims. The court further held the FCA provisions do not intrude on judicial self-administration. One judge dissented, arguing "transparency remains central to combating waste and fraud..." and "the Government fails to justify its First Amendment infringement with compelling interests and narrow tailoring." According to the opinion, since 1986, qui tam relators have filed helped the Department of Justice return over $27 billion to the US under the FCA.

Last year, the US Supreme Court [official website] ruled [JURIST report] 7-2 in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson [Cornell LII backgrounder; JURIST report] that whistleblowers cannot bring suit under the FCA to recover misspent government funds if the information used in the lawsuits came from state or local agencies' reports or audits. The suit arose out of public record documents that detailed a failure to obtain bids for the clean-up and reconstruction of storm-damaged portions of North Carolina. The ruling could potentially bar thousands of lawsuits by whistleblowers. However, Congress recently changed the language of the statute [SCOTUSblog report] as part of the health care reform bill [HR 3590 materials] signed into law [JURIST report] in March 2010.




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Israel parliament gives courts power to revoke citizenship
Matt Glenn on March 29, 2011 9:55 AM ET

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[JURIST] Israel's Knesset [official website, in Hebrew] passed a law Monday giving courts the power to revoke the citizenship of those convicted of treason, spying, aiding the enemy or terrorism. The law, initiated by members of nationalist party Israel Beytenu [party website], passed [Jerusalem Post report] by a vote of 37-11. Israeli Foreign Minister Avigdor Lieberman [official profile] repeated his campaign slogan [press release, in Hebrew] of "no loyalty, no citizenship," adding that the law would help deal with those who take advantage of democracy to undermine it. Previously the state could strip citizenship from convicts only through the interior ministry. Opponents of the law in the Knesset called it fascist [Ynet report] during debates and claim it targets Israel's Arab minority.

In October, Israel's cabinet approved a controversial change [JURIST report] to the country's citizenship oath forcing new citizens to pledge allegiance to Israel as a "Jewish and democratic state." Critics claim the oath, which was proposed by Israel Beytenu, unfairly discriminates against Arabs and threatens to increase tensions between Israelis and Palestinians. In July, the Knesset passed a law [JURIST report] limiting the ability of Arab-Israelis to bring Palestinian relatives into Israel. In 2009, the cabinet rejected an oath [JURIST report] proposed by Israel Beytenu that would force applicants for Israeli citizenship to pledge loyalty to a "Zionist, Jewish and democratic Israel."




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Berlusconi appears in court on fraud charges
Aman Kakar on March 29, 2011 9:37 AM ET

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[JURIST] Italian Prime Minister Silvio Berlusconi [official website, in Italian; JURIST news archive] attended a hearing in Milan on Monday to defend himself against charges of fraud and embezzlement. Berlusconi has not attended a case hearing for more than seven years [BBC report]. He is currently a defendant in four trials. Berlusconi is accused of inflating the price paid to buy television rights for his company Mediatrade to fund political activities. The appearance is a rarity for Berlusconi who has been a defendant in close to 50 trials but has consistently stayed away from the court. He stated that we will attend as many trials as he can.

Berlusconi also faces trial for underage prostitution [JURIST report] on April 6. In February, 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. Also in February, an Italian court resumed a tax fraud case [JURIST report] against Berlusconi. The case was re-opened after the Constitutional Court modified a law [JURIST report] aimed at giving Berlusconi and other public officials temporary immunity from charges while in office. That same month, 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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Egypt police officials charged with murdering protesters
Aman Kakar on March 29, 2011 8:32 AM ET

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[JURIST] An Egyptian prosecutor indicted three police officials [al-Masry al-Youm report] from the Beni Suef governorate on Monday on charges of murdering protesters during the Egyptian revolution. According to judicial sources, Major General Ahmed Abu Zeid, Colonel Mohamed Abdel Maqsoud and Colonel Mohamed Othman face charges of attempted murder and murder. The charges stem from a January 28 incident where police firing in Beni Suef resulted in 19 deaths and 300 injuries. Low-ranking officials have also been indicted with the same charges. The public prosecutors requested that security force find and detain fugitive officers. Last week, Egyptian Attorney General Abdel Meguid Mahmoud charged former interior minister Habib el-Adly [BBC report] with "pre-meditated and deliberate killing" of protesters. He is charged with opening fire on protesters and deploying the military when protesters violently clashed with security forces on January 28.

Egypt has been heavily criticized by rights groups and international organizations for its handling of protesters. On Thursday, a commission of Arab and Egyptian human rights groups accused [JURIST report] former president Hosni Mubarak [Al Jazeera profile] and the police of murdering protesters during the demonstrations in Egypt. In February, Amnesty International (AI) [advocacy website] reported new evidence that the Supreme Military Council of Egypt had been torturing protester-detainees [JURIST report]. Through various detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." Also in February, Human Rights Watch (HRW) [advocacy website] reported that the Egyptian military was improperly detaining protesters and allowing prisoner abuse [JURIST report]. The report calculated at least 119 arbitrary detentions and five incidents of torture, providing detainee accounts. HRW contends that the military was targeting human rights activists, protesters and journalists. In January, UN officials including Secretary-General Ban Ki-moon and High Commissioner for Human Rights, Navi Pillay [official websites], urged the Egyptian government to exercise restraint [JURIST report] and respect the rights of protesters. Pillay acknowledged 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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UN panel urges China to release detained human rights lawyer
Erin Bock on March 28, 2011 6:18 PM ET

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[JURIST] The UN Working Group on Enforced or Involuntary Disappearances [official website] called on the Chinese government Monday to free detained human rights lawyer [statement, PDF] Gao Zhisheng [advocacy website; JURIST news archive], whom they claim is being held in violation of international law. Gao was abducted and detained in February 2009 and has been held in detention ever since. The statement alleges that Gao was not formally charged with an offense and therefore his detention has no legal basis. Furthermore, the statement alleges that Gao's family is unaware of his whereabouts, he has been denied access to a lawyer and a fair trial, and he has possibly been subjected to torture. The UN group stated that these actions are in violation of articles of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR) [text], which China has signed but not ratified. The group also submitted that Gao's detention violates articles of the Constitution of the People's Republic of China and its Criminal Procedural Law [text].

In March 2010, an international group of human rights lawyers petitioned the UN group [JURIST report] to condemn Gao's detention. Two weeks later, Gao spoke to a reporter [JURIST report] and verified that he was alive and living in China's Shanxi province after being missing for more than a year. Gao stated that he was released from detention, but another Chinese human rights lawyer stated that Gao still appeared to be under some form of restraint in his interview. In January 2010, a Chinese Foreign Ministry spokesman indicated that Gao was "where he should be" [JURIST report] and that keeping him in custody comported with the law. Gao drew international attention in September 2007 when he wrote a letter [JURIST report] to the US Congress requesting assistance in improving human rights in China. Gao, who has also defended Christians and coal miners in China, claimed that he was tortured after his arrest in 2007. Gao was originally part of the Chinese Communist Party and handled prominent cases involving the outlawed Falun Gong movement [Falun Dafa website], but fell into disfavor with the government in 2006 when he was convicted of subversion [JURIST report] and placed under house arrest. China has long received criticism [JURIST news archive] from watchdog groups for its treatment of rights activists such as Gao.




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Supreme Court hears arguments on Arizona campaign finance scheme
Ann Riley on March 28, 2011 4:54 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in two consolidated cases concerning campaign financing [JURIST news archive]. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the First Amendment [text] forbids states from providing publicly financed candidates with additional government subsidies, which are triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents. In McComish v. Bennett, the court will determine whether Arizona's matching funds and the law regulating campaign financing to equalize resources among candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner, violate the First and Fourteenth Amendments [text]. The US Court of Appeals for the Ninth Circuit concluded [opinion, PDF] that the Arizona public financing scheme and matching funds provision did not offend the First Amendment. The appeals court declined to reach a conclusion as to the equal protection claim. Counsel for the petitioner argued that Arizona's matching funds provision is unconstitutional and should be struck down:
[T]his case is about whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies. ... This Court ... recognized that when the government reaches into a campaign and attempts to manipulate campaign financing in order to basically effectuate the outcome, that constitutes an illegitimate governmental purpose. ... The purpose of this law is to limit spending in elections and to level the playing field. ... [The law] is entirely structured to create disincentives ... on people speaking of engaging in political activity more than the government preferred.
Counsel for the respondent argued that "public funding of elections results in more speech and more electoral competition" and furthers a governmental interest of combating "real and apparent corruption in politics." Further, that public funding combats corruption by freeing candidates from the "need to accept potentially corrupting private contributions," and allows for more candidates to run, "more political speech, and more electoral competition." Arizona's matching funds system both promoted speech and encouraged candidates to run against incumbents. The government argued, as amicus curiae, supporting the respondents that the matching funds provision "provides a formula for giving the publicly funded candidate as much money as the privately funded candidate." The government agreed that public financing facilitated speech and allowed candidates to run on the same footing.

In CSX Transportation v. McBride [oral arguments transcript], the court heard arguments on whether recovery under the Federal Employers' Liability Act (FELA) [45 USC §§ 51-60 text] requires proof of proximate causation. The US Court of Appeals for the Seventh Circuit declined to hold [opinion, PDF] that common-law proximate causation is required to establish liability under FELA. Counsel for the petitioner argued that FELA was intended to follow the ordinary common law procedural approaches in respect to proximate cause:

Just five years after the enactment of FELA, the Court declared that it was obvious that the statute contained a proximate cause requirement. Proximate cause ... is an element of the cause of action. ... So proximate cause has been regarded as an essential component of the tort law. And that being so, FELA creates a Federal cause of action for negligence, it creates a Federal tort law. A fundamental principle of statutory interpretation ... [is] that when Congress creates a Federal tort, it means to adopt the general background of tort law.
Counsel for the respondent argued that the case presents a non-existent problem and that the court should adhere to the traditional approach. Counsel explained that FELA relaxed the causation standard saying, "FELA, by its plain terms, did away with the first concept of proximate cause because it limited the duty to the employee by the employer." Further, FELA is only a compensatory damages structure, providing no punitive damages, attorney's fees, or treble damages.




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Sentencing of final Enron executive ends 8-year proceedings
LaToya Sawyer on March 28, 2011 3:43 PM ET

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[JURIST] A federal judge sentenced former Enron Broadband Services [JURIST news archive] executive Rex Shelby [Houston Chronicle profile] to two years probation Monday on charges of insider trading. The sentencing marks the end of an eight-year long criminal prosecution of Enron executives linked to investment fraud that caused the fall of Enron Broadband unit. Shelby was one of seven executives indicted in 2003 on more than 164 criminal counts for allegedly overstating the value of the broadband division's software and network to inflate the value of Enron's stock. Shelby, who once faced 10 years in prison, was sentenced to serving six months in confinement. As part of his plea bargain, Shelby must forfeit over two million dollars. The judge also sentenced him to nearly 250 hours of community service. Shelby is expected to start his confinement in about a week.

Several trials and appeals have delayed criminal prosecution of Enron executives over the years. Of all the those indicted, three received prison sentences, and two, including Shelby, have been given probation sentences. One executive was acquitted when his charges were dismissed at trial. In 2008, a judge ordered [JURIST report] that three of Enron's CEO's be retried after an appeals court refused to dismiss charges [JURIST report] against the men. In 2006, the US Court of Appeals for the Fifth Circuit [official website] reversed the convictions [JURIST report] of four former Merrill Lynch [corporate website] executives found guilty in connection with an Enron. All of the Enron defendants were acquitted on various charges in 2005, but the jury failed to reach a verdict on all counts, and prosecutors later re-indicted [JURIST reports] the defendants.




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Kosovo presidential election ruled unconstitutional
Jennie Ryan on March 28, 2011 3:11 PM ET

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[JURIST] Kosovo's Constitutional Court [official website] on Monday declared last month's presidential election of Behgjet Pacolli [official website] unconstitutional [press release]. The decision comes after a complaint was filed by opposition parliamentarians who alleged irregularities in the voting process by which Pacolli was elected. The court declared the election unconstitutional by a majority vote with two judges dissenting. The court found that the election was contrary to the requirements of Article 86 of the Constitution of the Republic of Kosovo [text, PDF], which sets out the process for presidential elections, and "the democratic principles enshrined therein." It is uncertain whether the newly elected president must resign or if parliament will conduct another vote. The full text of the court's decision is not yet available.

This decision marks the second time Kosovo's highest court has declared circumstances surrounding the country's president unconstitutional since the country declared its independence from Serbia [JURIST report] three years ago. Then-president Fatmir Sejdiu resigned [press release] six months ago following a decision [press release] by the Constitutional Court that his dual roles as president and head of the Democratic League of Kosovo (LDK) violated the constitution [JURIST report]. The fledgling country also remains embroiled in several war crimes proceedings stemming from the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive], including the recent demand [JURIST report] by the Parliamentary Assembly of the Council of Europe (PACE) [official website] that Albania and Kosovo investigate and prosecute alleged incidents of organ trafficking, inhuman treatment and other crimes by the Kosovo Liberation Army (KLA) [official website].




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Poland prosecutors ask US to question Guantanamo detainees over secret CIA prison
Ashley Hileman on March 28, 2011 12:44 PM ET

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[JURIST] Polish prosecutors investigating an alleged secret CIA prison [JURIST news archive] announced Monday that they are asking US officials to question two Guantanamo Bay [JURIST news archive] detainees who claim they were held and abused at the site. The lawyers submitted their request [AP report], which includes a list of questions they would like the Guantanamo detainees to answer regarding their experiences, earlier this month. Both Abu Zubaydah and Abd al-Rahim al-Nashiri [NYT profile], who is accused of bombing the USS Cole, maintain that they were detained and abused at the site, and the prosecutors believe their testimony is necessary in order to determine whether it actually exists. The Open Society Justice Initiative (OSJI) [advocacy website], a human rights group that helped to launch the abuse investigation [JURIST report] last September, has urged the US to provide assistance. Executive Director of OSJI, James Goldston, stated [press release] that, "[t]he United States government should swiftly respond to the Polish prosecutor's requests for information on CIA black sites. The allegations of human rights abuses associated with the CIA's illegal rendition program must be properly investigated to secure justice for the victims and prevent future misconduct." The prosecutor's request did not stipulate a deadline for response from the US.

The investigation into al-Nashiri's allegations of the secret prison's existence and his abuse there began soon after former Polish prime minister Leszek Miller denied any knowledge of a secret CIA prison [JURIST report] in Poland. His denial followed confirmation by a former CIA agent that the agency tortured [Spiegel report] al-Nashiri in 2002 at a secret prison located in Poland. According to the agent, al-Nashiri was stripped naked and hooded before a gun and a drill were held close to his head. In addition to denying the existence of the prisons, Miller also stated that he believes claims of the prisons will jeopardize the safety of Polish citizens and members of the military currently serving in Afghanistan. Former Polish president Aleksander Kwasniewski has also denied the existence of the prisons. Both he and Miller maintain that they will not discuss the allegations of torture until the completion of an investigation into Poland's role in the US prisoner rendition [JURIST news archive] program. The original investigation into the existence of the CIA-operated prison was launched by the Polish government [JURIST report] in September 2008.




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International death penalty use declining: AI
Michael Haggerson on March 28, 2011 12:22 PM ET

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[JURIST] Use of the death penalty [JURIST news archive] is on the decline across the world, according to a report [text] released Monday by Amnesty International (AI) [advocacy website]. Excluding China, which keeps its death penalty statistics secret, the number of executions worldwide decreased from 714 in 2009 to 527 in 2010. The report further estimates that China executed "thousands" of individuals in 2010, more than the rest of the world combined. Although seven countries or territories re-instituted the death penalty after a break or expanded the scope of its current death penalty laws in 2010, fewer than half the countries that retain the death penalty have executed anyone since 2003. Salil Shetty, Secretary-General of AI, stated [AI blog]:
Countries that insist on using the death penalty continue to claim that they use it only in accordance with international law. But most of their actions blatantly contradict these claims.

In reality, many of these countries use the death penalty as a convenient way of getting rid of troublesome people and showing that authorities are tough on crime. It is often imposed after unfair trials and based on confessions extracted through torture. It is often used against political opponents, poor people, minorities and members of racial, ethnic and religious communities. It is sometimes even used against people who allegedly committed crimes when they were under 18 or who have significant mental impairments.

Shetty argues that, for these reasons, "[a] world free of the death penalty is not only possible, it is inevitable."

This is the second year in a row that the number of executions has decreased [JURIST report]. The 110 executions carried out in the US in 2010 represented only approximately a third as many as were being carried out in the mid 1990s, and Illinois became the sixteenth state to abolish the death penalty [JURIST report] in March. Illinois' death penalty ban is set to go into effect in July. Also this year, China dropped the death penalty [JURIST report] for 13 non-violent crimes in February, including teaching crime-committing methods and robbing ancients ruins. In October, the World Coalition Against the Death Penalty [advocacy website] urged [JURIST report] China, Iran and the US to abolish the death penalty [press release].




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Supreme Court to decide whether religious school teachers may sue for discrimination
Zach Zagger on March 28, 2011 11:29 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in a case over whether an employment discrimination claim can be brought against a religiously affiliated school despite the "ministerial exception." In Hosanna-Tabor Church v. EEOC [docket; cert. petition, PDF], the Equal Employment Opportunity Commission (EEOC) [official website] and Cheryl Perich brought a claim against the Hosanna-Tabor Evangelical Lutheran Church and School alleging that the school had unlawfully terminated Perich in violation of the Americans with Disabilities Act (ADA) [text] because she was diagnosed with narcolepsy. The school argues that the ADA does not apply to it because of the "ministerial exception" that allows religious organizations to give "preference in employment to individuals of a particular religion" and to "require that all applicants and employees conform to the religious tenants of such organization." Thus, the school believes that allowing the suit would infringe on its First Amendment right to choose its religious leaders. However, the US Circuit Court of Appeals for the Sixth Circuit [official website] disagreed, finding [opinion, PDF] that such an approach is "too rigid." The EEOC and Perich argue that "ministerial exception" clearly applies to ministers and religious leaders but that Perich was responsible for numerous secular teaching duties and should not be considered under the exception. Perich was terminated after she went on sick leave and attempted to return to work after obtaining a release from her doctor that said she could handle her job responsibilities while under medication. When she returned to work the school did not have a job for her and requested that she resign until the end of the year. Perich refused this situation and threatened a legal suit. The school then recommended to its board that she be terminated. Perich complained to the EEOC, which brought a discrimination and retaliation suit.

Also Monday, the court denied certiorari [order list, PDF] without comment in the Troy Anthony Davis [defense website; JURIST news archive] appeal, allowing Georgia to execute Davis for a murder committed over 20 years ago. One commentator suggested [SCOTUSblog report] that justices might have believed Davis had gotten what he wanted with a federal court review of his case, and that that decision was sufficient to resolve the matter. Last August, the US Supreme Court took the rare step of granting his original writ of habeas corpus [JURIST report] after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text] and instructed the district court to examine new findings of fact in the case. The US District Court for the Southern District of Georgia [official website] then heard the habeas petition, but the court sided against Davis saying that he failed to prove his innocence. Davis was convicted and sentenced to death for murdering an off-duty Savannah, Georgia, police officer on the night of August 19, 1989. According to his defense lawyers, key witnesses against Davis have recanted their testimony, and others say another person has since confessed to the killing.




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Ex-Khmer Rouge official in court to appeal war crimes convictions
Sarah Paulsworth on March 28, 2011 10:31 AM ET

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[JURIST] A former Khmer Rouge [BBC backgrounder] prison guard at the notorious Toul Sleng prison appeared at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday to appeal his 35-year prison sentence. Lawyers for Kaing Guek Eav [ECCC backgrounder; JURIST news archive] argued before the ECCC that their client was not a high-ranking member of the Khmer Rouge, but rather a person merely following orders [VOA report], and he should therefore be set free. In contrast, the prosecution, which will present its arguments on Tuesday, is seeking to increase [AFP report] Kaing's prison to sentence to life, but lowered to 45 years in light of time he spent in unlawful detention. Kaing, also known as "Duch," was convicted of committing war crimes and crimes against humanity [JURIST report] for overseeing the torture and killing of 16,000 people. His sentence was reduced to 19 years after the court considered time served as well as other factors. In August of last year, Kaing hired new counsel [JURIST report] to handle the appeals process. Kaing's lawyers filed a notice of an appeal [JURIST report] less than a week later. The ECCC's decision on Kaing's appeal is expected in June.

Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November 2009. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families, mitigating conduct that earned him a reduced sentence from the 40 years prosecutors originally sought. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provision detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution.




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Egypt to lift state of emergency before September election
Dwyer Arce on March 28, 2011 9:25 AM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] announced Monday that it would lift the state of emergency [JURIST news archive] before parliamentary polls to be held in September. General Mamdouh Shaheen, speaking for the military council, announced the parliamentary elections and said that the presidential election will be held after the September vote [AFP report]. Shaheen also announced that the military council had eased the requirements for the registration of political parties [Al Jazeera report], requiring the support of 5,000 people from 10 of the 29 provinces. On Friday, Human Rights Watch (HRW) [advocacy website] called on the military council to lift the state of emergency [JURIST report] that has been in effect since 1981. The military council, which has ruled Egypt since former president Hosni Mubarak [Al Jazeera profile] resigned amid mass protests against his government, first pledged to lift the emergency laws [JURIST report] after taking power in February. Also on Monday, the military council confirmed that Mubarak and his family had been placed under house arrest [Al Jazeera report], denying reports that they had left the country for Saudi Arabia.

The election announcement comes a week after an overwhelming majority of Egyptians voted to approve several constitutional amendments [JURIST report] in a national referendum. The majority approval is considered by some to be a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against Mubarak. Both the National Democratic Party and the Muslim Brotherhood supported the amendments to the Egyptian Constitution [text], which include lowering the presidential term limit and mandating new criteria for potential presidential candidates.




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Egypt protest ban violates international law: HRW
Erin Bock on March 27, 2011 4:38 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday condemned [press release] a ban on strikes and inciting protests [JURIST report] in Egypt as a violation of international law. Upon ratification by the Supreme Council of the Armed Forces [NYT backgrounder], the proposed law will impose prison sentences and fines for strike actions and inciting protests that would negatively impact the economy. HRW alleged that the proposed law is overbroad and vague and violates international law because it does not meet the "narrowly permitted grounds for limits on public assembly under international law" and its references to "national security" and "public safety" do not refer to situations involving an immediate and violent threat. HRW also cited the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (CESCR) [texts, PDF], stating that as a state party, Egypt must respect the rights to freedom of assembly and freedom of expression. HRW criticized the law as a hindrance to democracy, "betray[ing] ... the demands of Tahrir protesters."
Concerns about the economy or the security situation are no justification for repressive laws and no substitute for responsible policing and sound economic policies. Economic difficulties are no excuse for limiting people's rights. ... The provisions of this law criminalizing demonstrations that disrupt public works or harm societal peace are as overly broad and open to abuse as the restrictions in place under the Mubarak government. It's quite shocking, really, that a transitional government meant to replace a government ousted for its failure to respect free speech and assembly is now itself putting new restrictions on free speech and assembly.
In order to show their respect for human rights, HRW recommended that the cabinet and military council reverse the ban, issue a public statement regarding the right to peaceful strikes and demonstrations, and end the country's state of emergency [JURIST news archive], which has been ongoing since 1981.

In February, the military council pledged to lift the emergency laws [JURIST report] 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." Last week, a majority of Egyptian citizens voted to approve constitutional reforms [JURIST report], including parliamentary elections within the next six months. The council took over control of the country after former president Hosni Mubarak [Al Jazeera profile] was forced to step down following nearly three weeks of demonstrations protesting the Egyptian government and calling for his resignation. 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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Rights group brings FOIA suit against US agencies over Honduras coup
Erin Bock on March 27, 2011 4:03 PM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] filed a complaint [text, PDF] on Thursday to compel the release of documents related to the 2009 Honduras coup [JURIST report]. The complaint names the US Department of Defense (DOD) and Central Intelligence Agency (CIA) [official websites] as defendants alleging the agencies withheld documents requested under the Freedom of Information Act (FOIA) [5 USC § 552; JURIST news archive] regarding if and how the US government and its interests affected the coup. The complaint details the events of the 2009 coup where the Honduran military kidnapped then-president Manual Zelaya from his home and put him on a plane to Costa Rica. The complaint refers to the coup as "one of the most significant recent political events in the region" and states that the US continues to have a close relationship with Honduras, including training members of Honduran military and security forces.
In light of the close relationship between the United States an Honduras, it is probable that little goes on in Honduras without the knowledge of, and/or consultation with, the U.S. Government. ... Despite public information regarding the U.S. Government's knowledge of the coup and its perpetrators, before and during the actual commission of the act, Defendants refuse to release and continue to unlawfully withhold documents responsive to Plaintiff's requests.
In addition to the complaint, the CCR also filed several more FOIA requests [press release] with the DOD and CIA on behalf of the Honduras Commission for Truth (CDV) [official website], an organization tasked with investigating and establishing human rights violations that occurred during the coup.

In November, International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] opened a preliminary investigation [JURIST report] into the 2009 coup. In July, a Honduran court dismissed abuse of power charges against Zeleya because Zelaya's successor granted amnesty [JURIST reports] to Zeleya and those involved in his removal. In June, Amnesty International (AI) [advocacy website] accused the Honduran government [JURIST report] of failing to address human rights violations stemming from the June 2009 coup. AI contends that hundreds of people opposed to the coup have been beaten and detained. The group cited evidence that judges critical of the coup have "suffered a series of arbitrary transferrals and unfair disciplinary proceedings" as well as threats and intimidation.




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Lawmaker proposes halt to US military action in Libya
Drew Singer on March 27, 2011 1:43 PM ET

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[JURIST] US Representative Justin Amash (R-MI) [official website] on Friday announced [press release] legislation requiring an immediate halt to military action in Libya until Congress authorizes its resumption. The Restoring Essential Constitutional Constraints for Libyan Action Involving the Military (RECLAIM) Act [text, PDF] cites Article 1, Section 8 [Cornell LII backgrounder] of the Constitution while declaring that President Barack Obama must obtain authorization before any further military action is conducted. Amash explained the legislation:
Without approval from Congress, and absent an imminent or actual threat to our nation, the President does not have the constitutional authority to take us to war. The RECLAIM Act will enforce the constitutional requirement that Congress approve of an offensive military operation. Until the President seeks and is given authorization from Congress, air strikes in Libya must be halted. Sending our brave men and women into harm's way demands careful consideration. Whether or not Congress agrees with the President’s decision, initiating this conflict was not his decision to make alone.
The legislation also includes a prohibition on the use of appropriated funding for military action in Libya, but recognizes the "President's inherent authority to defend the country against an attack or imminent danger of an attack."

Operation Odyssey Dawn [GlobalSecurity backgrounder], a US-led military operation, has been conducting air strikes against the government of Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] for two weeks. The action began after the UN Security Council approved Resolution 1973 [text] earlier this month, imposing a no-fly zone over the country. The mission, as well as US involvement absent Congressional approval, has been controversial. JURIST Contributing Editor Michael J. Kelly [official profile] has argued that Obama has the constitutional authority [JURIST op-ed] to conduct the operation under the 1973 War Powers Resolution [50 USC § 1541 et seq.]. The resolution leaves Obama 92 days to act without Congressional authorization. Congress, however, reserves the right to "pull the plug," but has never before done so according to Kelly. JURIST Guest Columnist Curtis Doebbler [official profile] has argued that the operation violates international law [JURIST op-ed] by failing to comport with Article 42 of the UN Charter [text], which requires a determination that "measures not involving the use of force" have failed.




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Wisconsin union bargaining bill may become law despite judicial order
Carrie Schimizzi on March 26, 2011 11:16 AM ET

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[JURIST] A Wisconsin legislative measure designed to curb the collective bargaining power of unions could become law as early as Saturday, despite an order [text; JURIST report] enjoining Wisconsin Secretary of State Douglas La Follette [official website] from publishing the legislation. The Budget Repair Bill [SB 11, text] was published [text] on the Wisconsin Legislative Bureau [official website] online on Friday sparking debate [AP report] among government officials as to whether the law was now in effect. Reference Bureau Director Steve Miller called the publishing a procedural step and insisted the law would not take effect until La Follette takes implementation action by publishing the law in a newspaper; however, Senate Majority Leader Scott Fitzgerald (R) [official website] insisted the online publication meant the law would take immediate effect. La Follette said he was unclear as to the significance of the publication, but that he would not be taking any action due to the court order. In response to the online publication, two unions representing Wisconsin public works employees and firefighters, filed a lawsuit [State Journal report] against Governor Scott Walker [official website] alleging not enough Senate members were present when the vote on the bill was taken. Firefighters Local 311 [official website] and AFL-CIO Laborers Local 236 are seeking a judicial order declaring the bill null and void. This is the third lawsuit that has been brought challenging the controversial bill.

The Wisconsin Court of Appeals [official website] on Thursday declined to rule [JURIST report] on the order enjoining La Follette from publishing the Budget Repair Bill. The case will move on to the state Supreme Court, which will decide whether a court has the authority to enjoin the secretary of state's publication of the bill before it becomes law. Last week, District Attorney Ismael Ozanne (D) [official website] filed a lawsuit [JURIST report] alleging that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice or two hours if there is an emergency, before a public meeting. A similar suit [complaint] was filed earlier this month by Dane County Executive Kathleen Falk (D) [official profile]. On Wednesday, Attorney General JB Van Hollen (R) [official website] asked the court to block [motion, PDF] the Dane County Circuit Court [official website] order. He also asked for leave to appeal the order and for relief consisting of an order to stay the circuit court's ruling. Van Hollen argues that the Dane County Circuit Court did not have jurisdiction to hear the case because the four named defendants, who are all state legislators, enjoy legislative immunity during the regular legislative term. He also argued that the circuit court did not have jurisdiction to enjoin the publishing of the law. The provisions of the Budget Repair Bill limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since mid-February, when the bill was introduced. The bill was signed [JURIST report] into law by Governor Scott Walker on March 11.




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WTO grants Canada request for hearing on EU seal products ban
Aman Kakar on March 26, 2011 11:05 AM ET

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[JURIST] The dispute settlement body of the World Trade Organization (WTO) [official website] on Friday granted Canada's request to hear its dispute of the EU's [official website] ban on the import of seal products. Canada requested [filing; DOC] establishment of a panel to hear the dispute in February. In its request, Canada alleges that the seal ban is inconsistent with the obligations of the EU under the General Agreement on Tariffs and Trade 1994 and the Agreement on Technical Barriers to Trade [text; PDF]. Specifically, Canada contends that the ban results in less favorable treatment of seal products from Canada than seal products originating from the EU, creates an unnecessary obstacle to international trade, lacks a legitimate objective and is needlessly trade restrictive even if a legitimate objective does exist. The EU has stated its intentions to defend its position [Reuters report] in the hearing. The EU defends the law banning seal imports as one that is consistent with its international obligations and responds to concerns by its citizens about seal products. The panel is expected to take nine months to publicly release their findings.

The EU Court of Justice [official website] reinstated the ban on import of seal products [JURIST report] in October. Representatives of Canada's Inuit population sued the EU over the original ban [JURIST report] in January 2010, arguing that the hunting represented a traditional aspect of the Inuit's lifestyle. The Canadian government took action against the original ban [press release] in November 2009, initiating the WTO dispute resolution process by requesting consultations. The original ban was implemented in September 2009 following extensive public pressure to end seal hunting by groups citing humanitarian considerations. More narrow European restrictions imposed in 1983 caused the industry to suffer a sharp decline. Commercial seal hunting is an economic and cultural staple for the Inuit, who contend that their methods are necessary and humane.




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UN rights chief condemns Syria for repression of protesters
Aman Kakar on March 26, 2011 10:57 AM ET

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[JURIST] UN High Commissioner on Human Rights Navi Pilay [official profile] on Saturday urged the Syrian government [press release] to heed to the demands of protesters instead of responding with violence. Pilay warned that continued repression of the Syrian people would only lead to more anger and violence. She advised the Syrian government to look to the recent events in Tunisia, Egypt, Libya, Yemen and Bahrain as examples of the futility of suppressing protests. Pilay called for the Syrian government to guarantee protesters legitimate rights to peaceful expression and to work with the protesters to resolve their issues. Pilay expressed concern over violent repression of protests after the Syrian government announced a set of political and economic reforms stating, "Actions speak much louder than words, to announce a package of long-overdue and very welcome reforms, and then to open fire at protesters in the streets the very next day sends diametrically opposite signals and seriously undermines trust." Also on Saturday, the Syrian government freed 260 political detainees [AFP report] from Saydnaya prison in an overture to the protesters as protests in the country continued with protesters setting fire to a police station and local headquarters of the ruling Baath party. Pilay also stressed the need for an independent investigation into the death of several protesters and called for the immediate release of all detained political prisoners.

Amidst the continuing protests in the country, an adviser to Syrian President Bashar al-Assad [Al Jazeera profile] on Thursday announced that the government was considering lifting [JURIST report] the country's 48-year-old state of emergency law and would work to better protect citizens' human rights. On Tuesday, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] also expressed concern [JURIST report] over violence against protesters in Syria. Earlier this month, a military court in Syria sentenced a human rights activist [JURIST report] accused of harming the country's relations with Iran to 18 months in prison. Ali Abdullah's sentence was based on allegations that he made critical comments against Iran [AP report], thereby harming Syria's relations with a foreign country. Last month, Syria appeared to be lifting the four-year-old ban [JURIST report] on social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] as a concession to avoid popular upheaval [DP news report]. The Syrian protests may have been inspired by the recent unrest in Egypt, where nearly 400 people were killed and 5,500 were wounded during the three weeks of protests that led to the February resignation [JURIST report] of former president Hosni Mubarak [Al Jazeera profile].




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UN rights council to investigate Ivory Coast abuses
Carrie Schimizzi on March 26, 2011 10:02 AM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] will send an independent, international commission to investigate allegations of serious human rights abuses during post-election violence in the Ivory Coast [JURIST news archive], the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] announced [press release] Friday. The resolution, which was passed without a vote, was introduced by Nigeria on behalf of the African Group [UN profile] which stated "immediate action" was necessary to put an end to the violence. The commission will be appointed by the Council President and will investigate all allegations of abuse throughout the country. The commission will present its findings at the Council's 17th Session in late May. Speaking on behalf of the Ivory Coast, Kouadio Adjoumani thanked the UN [statement] for its interest in his country's situation:
It [the commission] would renew their hope that the international community had not abandoned them and that it was seriously concerned about the worsening situation in this country. Also, the resolution would establish the international panel of inquiry which reassured the country that the perpetrators would not go unpunished. The unacceptable attacks on civilians that were currently going on around Abidjan might constitute crimes against humanity and should be investigated by the International Criminal Court. The delegation realised that some of the issues discussed during the negotiation of the resolution were of a sensitive nature, but the final point of the resolution was the protection of civilians who were paying the heavy price. There was a need to move beyond the rhetoric towards concrete steps to ensure that human rights were protected throughout the world.
According to a report [press release] released Friday by the UN [official website], at least 1 million people in the Ivory Coast have been displaced from their homes due to "mounting violence" and fear of an "all-out war". The UN expressed concern over the "rapidly deteriorating" human rights situation in the country, citing increased heavy artillery attacks and widespread panic of residents. OCHA Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator Valerie Amos [official profile] requested those involved to respect the rights [press release] of civilians and humanitarian organizations throughout the country.

Earlier this month, the OHCHR called for an independent investigation [JURIST report] into post-election violence as part of a report to the UNHRC. In January, UN Secretary General Ban Ki-moon [official website] rejected the proposed recount [JURIST report] of November's Ivory Coast presidential runoff election results as a "grave injustice and unfortunate precedent." Also in January, UN officials expressed "grave concerns" [JURIST report] on continued post-election violence in the Ivory Coast, cautioning that genocide could be imminent. In December, UN officials urged all parties to the disputed presidential election in the Ivory Coast to honor the country's commitment to prevent genocide [JURIST report], crimes against humanity and ethnic cleansing under the 2005 World Summit Outcome Document [text, PDF]. Also in December, the Economic Community of West African States (ECOWAS) [official website] urged Gbagbo to step down, threatening the use of force [JURIST report] if he attempts to maintain power. Gbagbo has refused to cede power to president-elect Ouattara, who won the November 28 runoff election according to international observers.




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Spain judge Garzon petitions Europe rights court over Franco probe
Alexandra Malatesta on March 25, 2011 2:53 PM ET

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[JURIST] Spanish National Court judge Baltasar Garzon [BBC profile; JURIST news archive] on Thursday filed a petition [press release] with the European Court of Human Rights (ECHR) [official website], challenging a case brought against him in Spain that alleges abuse of power in investigating crimes committed under the Franco dictatorship [BBC backgrounder]. Garzon faces charges of politically motivated corruption [JURIST report] and violation of the 1977 Amnesty Law, which affords amnesty for Franco-era crimes. The charges are based on Garzon's 2008 order [JURIST report] for certain government agencies, the Episcopal Conference [church website, in Spanish], the University of Granada [academic website, in Spanish] and the mayors of four cities to produce the names of people buried in mass graves, as well as the circumstances and dates of their burial. The International Centre for the Legal Protection of Human Rights (INTERIGHTS) [advocacy website], a London-based NGO representing Garzon, claims he opened the investigation at the request of families and representatives of the regime's victims, and should be granted judicial immunity from such allegations. INTERIGHTS also argues that the Spanish courts lack sufficient grounds for trial:
Judge Garzon has been prosecuted under Spain's prevarication (or malfeasance) law, which allows judges to be prosecuted for unjust judgments. Normally the prosecution of judges under this law in Spain and the prosecution of judges generally in European States is highly exceptional. According to prior decisions of the Spanish courts, judges can only be prosecuted for unjust decisions that are irrational, perverse or objectively unsustainable. There is no basis in Spanish or international law for a judge to be prosecuted for reasoned interpretations of the law. The prosecution of judges for their decisions, specifically for their interpretations of the law, rather than the appeal or review of those decisions within the normal legal framework, violates the fundamental principle of the independence of judges.
It may take weeks for the ECHR to decide whether to hear his case.

Garzon has faced turmoil since his 2008 decision to exhume the mass graves. In September, the Criminal Chamber of the Spanish Supreme Court [official website, in Spanish] unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. The board of judges denied [El Pais report, in Spanish] Garzon's appeal of the order, although his trial is still pending. If convicted, Garzon could face a suspension of up to 20 years. In May, the Spanish General Counsel of the Judiciary (CGPJ) [official website, in Spanish] voted unanimously to suspend [JURIST report] Garzon. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet.




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Colorado Senate approves same-sex civil unions bill
Drew Singer on March 25, 2011 2:06 PM ET

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[JURIST] The Colorado Senate [official website] on Thursday approved a bill [SB 172 text, PDF] that would grant same-sex couples the legal right to civil unions [JURIST news archive]. The Colorado Civil Unions Act [legislative history] says that the legal benefits, protections and responsibilities that the law gives married couples will also be given to civil unions. The bill lists certain rights included in its definition, including the ability to adopt a child and share benefits. Despite these protections, the text of the Act adds that "The Act shall not be construed to create a marriage between the parties to a civil union, create or recognize a legal status similar to marriage, or alter the public policy of this state that recognizes only the union of one man and one woman as a marriage." The bill will now advance to the House of Representatives where its passage is uncertain [Reuters report]. Governor John Hickenlooper (D) [official website] has pledged to sign the measure into law if it is approved by the House.

Last month, Hawaii Governor Neil Abercrombie (D) [official profile] signed [JURIST report] the same-sex civil unions bill [SB 232 text, PDF] into law, legalizing same-sex civil unions 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. Also in February, Illinois Governor Pat Quinn (D) [official website] signed a bill [JURIST report] legalizing same-sex civil unions. While several states now allow same-sex civil unions, only six US jurisdictions allow same-sex marriage [JURIST news archive], including Washington, DC, Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports].




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Thailand court fines 'yellow shirts' $17 million for airport protests
Daniel Richey on March 25, 2011 1:57 PM ET

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[JURIST] The Civil Court of Thailand on Friday ordered the core leaders of the People's Alliance of Democracy (PAD) [party website; BBC backgrounder], or "yellow shirts," to pay 522 million baht (USD $17 million) in damages to the Airports of Thailand (AOT) [official website] in connection with a massive 2008 sit-in protest [NYT report] that spanned eight days during the holiday travel season from November to December. The court ruled that the yellow shirts illegally interfered [Bangkok Post story] with the operation of the Don Mueang and Suvarnabhumi international airports, Thailand's two biggest hubs, by effecting a blockade that left more than 300,000 travelers stranded and cost the Thai economy more than 3 billion baht a day just in lost imports and exports at Suvernbahumi. The yellow shirts, a pro-establishment nationalist movement primarily driven by Thailand's upper-class and military establishments, allies of Thai Prime Minister Abhisit Vejjajiva [BBC profile], incited thousands to occupy the airports as part of their effort to force the resignation of the Thai government under Somchai Wongsawat, who was appointed prime minister in 2008 when former PM Thaksin Shinawatra [BBC profile], his brother-in-law, was ousted [NYT report]. The yellow shirts ended their protests in 2008 and released the airports [JURIST reports] after Thailand's Constitutional Court ordered a dissolution of the ruling government and removed Wongsawat, opening the door for Vejjajiva to assume the office.

In December, the Bangkok Criminal Court sentenced 84 members of the yellow shirt movement [JURIST report] to between six and 30 months in prison for their roles in the 2008 invasion of Thailand's top government-owned television station, the National Broadcasting Service of Thailand (NBD) [media website, in Thai]. The takeover, which shut the station down for several hours, was part of their campaign against Wongsawat's government. That September, a Thai court convicted two former yellow shirt television personalities [JURIST report] of defaming Thaksin by accusing him of insulting the monarchy. In August, leaders of the opposition movement, the United Front for Democracy Against Dictatorship (UFDAD) [BBC backgrounder], or "red shirts," pleaded not guilty [JURIST report] to inciting violence and threatening government officials during a week of violence in May. In June, the Thai government indicated it would study the possibility of extending amnesty to red shirt protesters [JURIST report] convicted of minor offenses in order to facilitate reconciliation within the country. The offer of amnesty would not be given to the protesters charged with terrorism but could be extended to the 27 red shirt protesters who were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. The protests came to an end [JURIST report] in May when red shirt leaders surrendered to police, which led to rioting, arson and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas.




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Russia court sentences Arctic Sea hijackers
Drew Singer on March 25, 2011 1:45 PM ET

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[JURIST] A Russian court has jailed six men for crimes related to their roles in the 2009 hijacking of the MV Arctic Sea [Huffington Post report], reports [BBC report] on Friday said. A court in the country's town of Arkhangelsk handed out sentences ranging from 7 to 12 years in prison. Three of the hijackers were stateless, while the other three were respectively from Russian, Latvia and Estonia. The MV Arctic Sea, originally of Malta, was hijacked by the men in July of 2009 and cut off contact with the outside world shortly thereafter. The ship was found about two months later by the Russian navy and seized.


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Last month, a judge for the US District Court for the Southern District of New York sentenced Somali pirate Abduwali Muse to 34 years in prison [JURIST report] 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. 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. Piracy near the continent of Africa has become an increasingly serious problem for private shipowners and many nations. Also last month, a Norwegian ship owner suggested that pirates should be executed on the spot when they attempt to hijack ships, a stance that drew criticism from the Norwegian government.




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Human rights court invalidates Uruguay military amnesty law
Michael Haggerson on March 25, 2011 1:42 PM ET

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[JURIST] The Inter-American Court of Human Rights (IACHR) [official website, in Spanish] on Wednesday condemned [judgment, PDF; in Spanish] the Uruguayan government for its role in the abduction and death of an Argentinean woman in the 1970s, effectively overturning the country's amnesty law. Maria Claudia Garcia Iruretagoyena de Gelman was abducted from Argentina in 1976 [NYT report] and transferred to a detention center in Uruguay, where she disappeared while in the custody of government forces. The court's ruling effectively overturns Uruguay's Expiry Law [text, in Spanish], which granted military officials immunity for human rights violations that occurred during the country's 1973-1985 dictatorship [Country Studies backgrounder]. In 2009, Uruguayan voters failed to overturn the law [JURIST report] in a voter referendum that required only 50 percent majority to nullify the law. The Uruguayan Supreme Court [official website, in Spanish] ruled in November that the law is unconstitutional, after previously limiting findings of unconstitutionality to certain exceptional cases [JURIST reports]. In addition to ordering an investigation into Gelman's abduction, the IACHR also ordered the Uruguayan government to make a public apology for crimes committed by the government dictatorship.

Many of the alleged kidnappings and deaths occurred in connection with Operation Condor [BBC backgrounder], a cooperative effort between the governments of Uruguay, Chile, Paraguay, Argentina, Brazil and Chile to eliminate left-wing political opponents. In June, ex-military officials in Argentina were put on trial [JURIST report] for the deaths of 65 activists in connection with Operation Condor. The Uruguayan government has also attempted to bring those responsible for the disappearance of leftist activist to justice. In 2006, eight former police and military officers were indicted by a Uruguayan court [JURIST report] on counts of kidnapping and conspiracy committed during the 1973-1985 dictatorship. The crimes were related to the 1976 disappearances of five members of an Uruguayan leftist group who fled to Argentina and were detained there by police, and who investigators suspect were victims of Operation Condor.

Read more about Uruguay's Reparations Law on JURIST's Dateline service.




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Federal judge dismisses suit by ex-prosecutor against DOJ
Brian Jackson on March 25, 2011 11:20 AM ET

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[JURIST] A federal judge on Thursday dismissed [opinion, PDF] a suit by former assistant US Attorney Richard Convertino in which the former prosecutor accused the Department of Justice (DOJ) [official website] of violating the Administrative Procedures Act and his right to privacy. Judge Royce Lamberth of the US District Court for the District of Columbia [official website] dismissed the suit because of Convertino's inability to identify who within the DOJ he believed had leaked details of the DOJ's misconduct investigation of Convertino [JURIST news archive] to a reporter from the Detroit Free Press in 2004. Lamberth detailed the lengthy history of the suit, saying, "Seven years of litigation have sapped the resources of more than one United States District Court." One of the main reasons that Lamberth identified for dismissing the suit was the necessity of Convertino's ability to identify the alleged leaker. Because Convertino could not do so, Lamberth wrote:
Part of the reason Convertino has to know the leaker's identity in order to defeat DOJ's Motion for Summary Judgment is that without it, he cannot show that the DOJ employee who allegedly leaked information to the Detroit Free Press was acting within the scope of his or her DOJ employment at the time of the leak. In order for an agency to be liable for a Privacy Act violation allegedly committed by one of its employees, the responsible agency employee must have been acting within the scope of his or her employment. Therefore, even if Convertino could prove that the leak must have come from a DOJ employee-which he cannot-his claim would fail because no reasonable fact-finder could conclude that any such DOJ employee was acting within the scope of his or her employment at the time of the leak.
David Ashenfelter, the reporter whose 2004 story initiated Convertino's suit, has repeatedly refused to identify the source.

The DOJ investigation into Convertino's alleged misconduct centered on his conduct in a terrorism case in Detroit in the wake of the 9/11 attacks. Convertino was found not guilty of obstruction of justice [JURIST report] in 2007 for his part in the botched prosecution. Convertino had resigned [JURIST report] from the Department in May 2005 in the fallout from that case. In the original trial, two of the defendants were convicted, only to have their sentences overturned [JURIST report] in 2004 by the judge due to the allegations that the prosecution did not turn over the satellite photos alleged to be exculpatory by the DOJ to the defense.




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ICC prosecutor certain of Gaddafi war crimes charges
Daniel Richey on March 25, 2011 10:54 AM ET

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[JURIST] International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] told the press during a visit to Cairo Thursday that he is 100 percent certain his office will bring charges against Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive]. Moreno-Ocampo said that his office is coordinating with a number of law enforcement organizations, including Interpol, in an investigation into six separate incidents in which Gaddafi is alleged to have ordered massive shooting attacks on peaceful protests, a process he said is certain to result in charges. Moreno-Ocampo warned Libyan officials last week [JURIST report; video] that any violence against civilians in the rebel-held capital Benghazi would result in prosecution for war crimes. His warning followed calls for a UN-imposed no-fly zone [JURIST report] over the Middle Eastern nation after reports surfaced indicating that Gaddafi had been using aircraft attacks to combat civilian protests. Shortly before the UN vote authorizing the resolution, Gaddafi threatened an imminent attack on Benghazi [NYT report]. Although the Libyan government responded to the ICC's warning with promises of a ceasefire [AP report], the attacks have continued.

Earlier this month, the ICC launched a probe to investigate allegations of crimes against humanity [JURIST report] by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. Additionally, the UN appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi ordered forces to torture and abduct opponents. Gaddafi is accused of ordering hospital patients' executions, firing on crowds of protesters and using other extreme tactics against his opponents. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. The ICC has also said that it will not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.




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Syria government to consider ending emergency law
Andrea Bottorff on March 25, 2011 8:34 AM ET

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[JURIST] An adviser for Syrian President Bashar al-Assad [Al Jazeera profile] on Thursday announced that the government would consider lifting the country's 48-year-old state of emergency law and would work to better protect citizens' human rights. Presidential spokesperson Buthaina Shaaban said that the government might repeal the emergency law [AFP report], which bans political protests, in addition to making other reforms such as releasing political prisoners, allowing the formation of political parties and raising the salaries of government employees. The announcement may be an effort to stop ongoing protests, which have escalated since last week. In the southern city of Daraa, as many as 36 protesters have allegedly been killed by police [HRW news report] since March 18. Other protesters were arrested, though the government announced that all the protesters have since been released from prison [RTE report]. The government has been promising reforms since January, when al-Assad announced in an interview that he would push for political reforms including municipal elections and a new media law [WP interview]. Another protest was planned in Damascus [LAT report] on Friday, despite the government's promised reforms.

The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday expressed concern [JURIST report] over violence against protesters in Syria. A military court in Syria last week sentenced a human rights activist [JURIST report] accused of harming the country's relations with Iran to 18 months in prison. Ali Abdullah's sentence was based on allegations that he made critical comments against Iran [AP report], thereby harming Syria's relations with a foreign country. Last month, Syria appeared to be lifting the four-year-old ban [JURIST report] on social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] as a concession to avoid popular upheaval [DP report]. The Syrian protests may have been inspired by the recent unrest in Egypt, where nearly 400 people were killed and 5,500 were wounded during the three weeks of protests that led to the February resignation [JURIST report] of former president Hosni Mubarak [Al Jazeera profile].




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Wisconsin appeals court passes union bargaining case to state supreme court
Carrie Schimizzi on March 25, 2011 8:01 AM ET

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[JURIST] The Wisconsin Court of Appeals [official website] on Thursday declined to rule [certification, PDF] on an order [text; JURIST report] enjoining Wisconsin Secretary of State Douglas La Follette [official website] from publishing a legislative measure designed to curb the collective bargaining power of unions. The case will move on to the state Supreme Court [official website], which will decide whether a court has the authority to enjoin the secretary of state's publication of the Budget Repair Bill [SB 11 text, PDF] before it becomes law. The lawsuit [JURIST report], filed last week by District Attorney Ismael Ozanne (D) [official website], alleges that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice or two hours if there is an emergency, before a public meeting. The Court of Appeals passed the case to the state's Supreme Court because it involves "significant issues" and cited the high court as the "proper forum" to resolve them:
This case presents several significant issues involving justiciability and the remedies that are available under Wisconsin's Open Meetings Law. As we will explain below, we believe that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine... Plainly, this case has broad statewide implications for the general public and those most directly affected by the challenged Act, in addition to those interested in the manner of its passage. Accordingly, we certify the petition for leave to appeal and accompanying motion for temporary relief to the Wisconsin Supreme Court.
A majority of the court's seven justices must agree to hear the suit before the case can move forward.

Ozanne's suit was the second such challenge by a state official, following a similar suit [complaint] filed by Dane County Executive Kathleen Falk (D) [official profile]. On Wednesday, Attorney General JB Van Hollen (R) [official website] asked the court to block [motion, PDF] the Dane County Circuit Court [official website] order. He also asked for leave to appeal the order and for relief consisting of an order to stay the circuit court's ruling. Van Hollen argues that the Dane County Circuit Court did not have jurisdiction to hear the case because the four named defendants, who are all state legislators, enjoy legislative immunity during the regular legislative term. He also argued that the circuit court did not have jurisdiction to enjoin the publishing of the law. The provisions of the Budget Repair Bill limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since mid-February, when the bill was introduced. The bill was signed [JURIST report] into law by Governor Scott Walker (R) [official website] on March 11.




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Argentina court gives ex-general additional life sentence for 'Dirty War' crimes
Carrie Schimizzi on March 25, 2011 7:09 AM ET

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[JURIST] An Argentine court sentenced former general Luciano Benjamin Menendez [Project Disappeared profile; JURIST news archive] to life in prison on Wednesday for the 1976 attack and murder of five urban guerrilla group members during the country's 1976-1983 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. Menendez is already currently serving another life sentence [JURIST report] for the 1977 kidnapping, torture and killing of four political dissidents. Menendez, a former general for the Third Army Corps, commanded the secret prison "La Perla" for Argentina's military dictatorship. A panel of judges found him guilty of executing a violent police raid [La Nacion report, in Spanish] on a home where members of an anti-government group were meeting. It is estimated that between 20,000 and 30,000 people were forcibly kidnapped or "disappeared" during the government's campaign against suspected dissidents during the country's Dirty War.

Argentina continues to prosecute those accused of committing human rights abuses during the Dirty War. Earlier this month, an Argentine court commenced the trial of former dictators Jorge Videla [Trial Watch profile; JURIST news archive] and Reynaldo Bignone [JURIST news archive] for allegedly overseeing a systematic plan to steal babies [JURIST report] born to political prisoners. In December, Videla was sentenced to life in prison [JURIST report] for crimes against humanity. In June, trial proceedings were commenced for five ex-military officials allegedly responsible for the death of 65 left-wing activists [JURIST report]. In May, Argentine authorities arrested [JURIST report] former secret service agent Miguel Angel Furci on charges of human rights abuses. Furci, a former agent of the Secretariat of State Intelligence (SIDE), was charged with 70 kidnappings and the torture of detainees at Orletti. Also in May, the Spanish government extradited [JURIST report] pilot Julio Alberto Poch to Argentina to face trial for his alleged role. In April, a federal court in Argentina sentenced [JURIST report] former president and military general Bignone to 25 years in prison for human rights abuses during his 1982 to 1983 presidency.




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UN rights council launches Iran probe
Aman Kakar on March 24, 2011 1:14 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] adopted a resolution [text, pdf] on Thursday, appointing a Special Rapporteur to investigate human rights violations in Iran. The resolution was adopted [press release] by a vote of 22 in favor, 7 against and 14 abstentions. The Special Rapporteur is required to present an interim report to the sixty-sixth session of the General Assembly and to the nineteenth session of the UNHRC. The US and two additional co-sponsors drafted the resolution, due to concerns expressed by Secretary-General Ban Ki-Moon [official website] in an interim report [pdf] on the situation of human rights in Iran. The interim report expressed concerns over alleged increase in executions, amputations, arbitrary arrest and detention, unfair trials, and possible ill-treatment of human rights opposition activists. Iran spoke at the session as a concerned country and drew attention to Iran's cooperation with the UN and US on human rights issues:
The approach of Iran to the promotion and protection of human rights was based and emanated from its religious and cultural background and its international commitments. The Government of Iran had worked wholeheartedly to ensure the human rights of its people. At the international level, Iran had extended full cooperation to the Office of the High Commissioner for Human Rights and had extended invitations to Special Rapporteurs and had received them on six different occasions. Providing true and timely communications at the request of Special Procedures had been a constant. The Human Rights Council had reviewed and adopted the Universal Periodic Review Outcome on the Islamic Republic of Iran and they had already extended an invitation to the High Commissioner to visit the country this year...Whatever the result of the action would be, Iran would continue its efforts to the promotion and protection of human rights which were inherent, genuine and deeply rooted in its values.
Bangladesh, China, Cuba, Ecuador, Mauritania, Pakistan, and Russia voted against the resolution. Pakistan, Cuba, Uruguay, China , Brazil and Mauritania spoke in general comments and explanations of the vote before the vote. They expressed a preference for dealing with the issue through dialogue and expressed confidence in Iran's continued cooperation with the UN human rights system. Also on Thursday, the Council renewed the mandate of its special investigator on the situation in the North Korea.

Iran has been heavily criticized due to alleged human rights abuses. In January, the International Campaign for Human Rights in Iran [official website] claimed that Iran is on an "execution binge" [JURIST report], killing one prisoner every eight hours. Earlier in January, prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced [JURIST report] to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of moharebeh, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Also, in January, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders [JURIST report] for political unrest that took place after the country's 2009 presidential election [JURIST news archive].




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Spain denies legal status to new Basque political party
LaToya Sawyer on March 24, 2011 12:19 PM ET

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[JURIST] The Spanish Supreme Court [official site, in Spanish] on Wednesday denied legal status to new political party, Sortu, in response to the government's concerns that its links to the Basque separatist group ETA [Global Security backgrounder; JURIST news archive] had not been completely severed. ETA is an organization committed to fighting for full nationhood of the Basque region of Spain and France. Spanish and French authorities have proscribed this group as a terrorist organization that is blamed for the deaths of over 800 people. According to the court, Sortu is a successor of the banned ETA-linked party Batasuna [BBC backgrounder; JURIST news archive]. Sortu was created following ETA's January declaration of a permanent ceasefire [CNN report] in Spain and was in response to ETA pro-independence groups deciding against violent measures as an effective way to seek an independent Basque state. Although Sortu has rejected violence, the court's concerns that the ETA has not permanently disbanded prevents the court from taking the new political party seriously. The court's ruling will bar Sortu from participating in May's upcoming elections. Sortu will be able to appeal the court's decision, but the appeals court will unlikely reach a verdict before the elections. The court will release its reasoning for denying Sortu legal status later this week.

ETA killings and attacks have dramatically declined in Spain and France in the past few years in response to increased judicial crackdowns, which are largely responsible for weakening the group. Most notably, in December a French court sentenced [JURIST report] former ETA Basque separatist leader Mikel Albizu Iriarte to 20 years in prison. In the same month, a French appeals court sentenced another former ETA leader, Jose Antonio Urrutikoetxea, to seven years in prison for association with a terrorist organization. Last year, the Spanish National Court [official website, in Spanish] sentenced [JURIST report] Arnaldo Otegi, a former leader of Batasuna , to two years in prison for promoting terrorism. In June 2009 the European Court of Human Rights (ECHR) [official website] upheld [JURIST report] Spain's ban of Basque political groups Batasuna and Herri Batasuna for their alleged ties to ETA.




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Egypt temporary government releases decree criminalizing strikes
Julia Zebley on March 24, 2011 12:09 PM ET

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[JURIST] Egypt's interim government, the Cabinet of Ministers [official website] released a decree [text] on Wednesday that will impose prison sentences for strike actions and inciting protests. Although the Supreme Council of the Armed Forces has yet to rule on the decree, many citizens were outraged and have planned a protest for Friday [Al-Ahram report]. Strikes have been ongoing since the recent revolution, with postal workers, police officers, hospital staff, railway workers, lawyers and journalists, among other groups, continuing to strike for better work conditions and pay. The decree would criminalize any protests, strikes or sit-ins that negatively affect the economy, as well as those who call for or incite action, with a maximum sentence of one year in prison and fines of up to half a million pounds. According to the decree:
The Cabinet reasserted the necessity of immediate stoppage of all demonstrations and strikes witnessed nationwide especially that the cabinet has received huge amount of legal demands and responded to them, and other demands are studied, and that the government is working to prepare a complete frame to deal with policies of employment and incomes.
Last month, the Supreme Council of the Armed Forces pledged to lift the 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." The cabinet's decree also established guidelines for creating new political parties.

Earlier this week, an overwhelming majority of citizens voted yes to constitutional reforms [JURIST report], including parliamentary elections within the next six months. The Egyptian Supreme Council of the Armed Forces last month announced the formation of the judicial committee [JURIST report] to oversee amending the Egyptian constitution. When the council assumed power, 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 followed the intentions of ousted president Hosni Mubarak, who had approved the formation of a panel [JURIST report] to amend the constitution before he resigned. Mubarak stepped down after nearly three weeks of demonstrations [Al Jazeera report] protesting the Egyptian government and calling for his resignation. 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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Idaho, Kansas lawmakers approve bans on late-term abortions
Sarah Paulsworth on March 24, 2011 9:50 AM ET

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[JURIST] The Idaho Senate [official website] voted 24-10 on Wednesday to approve a bill [SB 1165, PDF] that would prohibit most abortions after 20 weeks of gestation. The "Pain-Capable Unborn Child Protection Act," similar to bills passed in Nebraska last year and approved in Oklahoma and Missouri [JURIST reports] last week, is based on evidence suggesting that a fetus can feel pain after 20 weeks [Reuters report]. Also on Wednesday, the Kansas Senate [official website] passed a similar bill [HB 2218, PDF], with a vote of 24-13 [Reuters report], that would prohibit most abortions after 21 weeks of gestation. The Kansas House [official website] approved the same bill [JURIST report] in February. The legislation in both Idaho and Kansas does permit abortions after the 20- or 21-week mark, respectively, only in cases where the mother's life is at risk or she faces serious injury. Doctors who perform abortions after that would be subject to criminal prosecution, but there would be no penalty for women undergoing the procedure. Idaho's "Pain-Capable Unborn Child Protection Act" will now be forwarded to the House for approval and is expected to pass, while Kansas Governor Sam Brownback [official website] is expected sign the Kansas provision into lawn.

Some groups have criticized the recent passage of Pain-Capable Unborn Child Protection Acts throughout the country, asserting that they violate 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. State legislatures have also been implementing other measures to restrict abortions. Earlier this week, South Dakota Governor Dennis Daugaard signed into law a bill requiring women to seek counseling at a pregnancy center and wait three days [JURIST report] before obtaining an abortion. 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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Ninth Circuit refuses to lift same-sex marriage ban
Ann Riley on March 24, 2011 8:49 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday denied [order, PDF] a motion [text, PDF] to lift the stay order prohibiting gay couples from marrying while an appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, is pending. The court relied on the Supreme Court ruling in Nken v. Holder [opinion text], which explains the standards for staying a court order on appeal, and the standard for vacating a stay order articulated in the Ninth Circuit precedent Southeast Alaska Conservation Council v. U.S. Army Corps. of Engineers [opinion text]. California Attorney General Kamala Harris [official website] asked the court to lift the stay [JURIST report] earlier this month, arguing that the appeal is unlikely to succeed in light of jurisdictional concerns [JURIST report] and the recent US Department of Justice (DOJ) [official website] decision to stop defending the constitutionality [JURIST report] of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] in August.

After being asked [JURIST report] by the Ninth Circuit to weigh in, the Supreme Court of California [official website] announced last month that it will decide whether supporters of Proposition 8 have standing [JURIST report] to defend the measure when state officials have refused to do so. When Judge Vaughn Walker of the US District Court for the Northern District of California [official website] struck down Proposition 8 [JURIST report], 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 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] in December. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing and the second on Proposition 8's constitutionality.




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US soldier pleads guilty to murdering Afghan civilians
Ann Riley on March 24, 2011 7:55 AM ET

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[JURIST] Specialist Jeremy Morlock [JURIST news archive] pleaded guilty Wednesday to three counts of murder as part of a plot contrived with fellow soldiers to kill Afghan civilians. At the court-martial, held at Joint Base Lewis-McChord [official website], Morlock also pleaded guilty [AP report] to one count each of assault, conspiracy, obstructing justice and illegal drug use in exchange for a maximum sentence of 24 years in prison. According to the plea-agreement [AP report], Morlock agreed to testify against his co-defendants. Four other soldiers in Morlock's unit, the 5th Stryker Brigade, are also charged with the deaths of the three Afghan men, which occurred in the Kandahar province in January, February and May of last year. Morlock told the military judge, Lieutenant Colonel Kwasi Hawks, that he and his fellow soldiers began plotting the murders of unarmed Afghans in 2009 and killed the three civilians knowing they were unarmed and posed no legitimate threat. Morlock testified that Staff Sergeant Calvin Gibbs, who is also charged, took the lead in developing the plot. Gibbs maintains [Seattle Times report] that the deaths were a result of combat. In January, the Washington Post first reported that Morlock accepted the plea agreement [JURIST report] offered by US Army [official website] prosecutors. Morlock, charged [JURIST report] June, is the first of the five soldiers to be court-martialed.

Investigations into the 5th Stryker Brigade have led to additional charges for lesser crimes against seven other soldiers. Staff Sgt. Robert Stevens pleaded guilty [JURIST report] in December to shooting two unarmed Afghan farmers following a plea agreement that will allow him to remain in the military after serving a nine month sentence and testifying against other soldiers accused of terrifying civilians. Earlier in the week, the US Army had ordered a court-martial [JURIST report] for Staff Sgt. David Bram, who was accused of severely beating an Army private in his unit to keep him from informing about alleged drug abuse within the unit. The Army announced in May that its Criminal Investigation Command was opening an investigation into the civilian deaths [JURIST report] in Kandahar. These charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan. In April, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. Hutchins was serving an 11-year sentence, reduced from 15 years [JURIST report], for his role in the April 2006 kidnapping and murder of an Iraqi civilian. In December 2009, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September 2009.




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Egypt rights commission accuses Mubarak of protester murders
Sarah Posner on March 24, 2011 7:42 AM ET

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[JURIST] A commission of Arab and Egyptian human rights groups have accused former president Hosni Mubarak [Al Jazeera profile] and the police of murdering protesters during the demonstrations in Egypt, according to a local newspaper [Al-Ahram report, in Arabic] on Wednesday. The joint commission has submitted their report to Egypt's top prosecutor for further investigation. The Supreme Military Council of Egypt, which took over after Mubarak's resignation, has instructed Egypt's top prosecutor to investigate the death of protesters [Ria Novosti report] during the three weeks of demonstrations in Egypt. Following the demonstrations, Egypt's chief prosecutor requested last month that Foreign Ministry officials take steps to freeze any foreign assets [JURIST report] belonging to former president Mubarak and his family.

Egypt has been heavily criticized by rights groups and international organizations for its handling of protesters. In February, Amnesty International (AI) [advocacy website] reported new evidence that the Supreme Military Council of Egypt had been torturing protester-detainees [JURIST report]. Through various detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." Also in February, Human Rights Watch (HRW) [advocacy website] reported that the Egyptian military was improperly detaining protesters and allowing prisoner abuse [JURIST report]. The report calculated at least 119 arbitrary detentions and five incidents of torture, providing detainee accounts. HRW contends that the military was targeting human rights activists, protesters and journalists. In January, UN officials including Secretary-General Ban Ki-moon and High Commissioner for Human Rights, Navi Pillay [official websites], urged the Egyptian government to exercise restraint [JURIST report] and respect the rights of protesters. Pillay acknowledged 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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Supreme Court hears argument in Miranda, right to counsel cases
Brian Jackson on March 23, 2011 1:52 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in JDB v. North Carolina [oral arguments transcript, PDF; JURIST report] on whether a court should consider a juvenile's age when determining whether the individual is in custody for purposes of the Miranda warning as set forth in Miranda v. Arizona [opinion text]. In this case, the juvenile student made incriminating statements to two law enforcement officers after being removed from a classroom, and the Supreme Court of North Carolina held [opinion, PDF] that the student was not in custody when he made the statements and therefore not entitled to the protections of Miranda or North Carolina statute 7B-2101(a) [text]. Attorneys for JDB argue [brief, PDF] that age is an objective factor that must be included in the objective test for determining whether an individual would feel free to stop the questioning and leave the area. Among the factors to be considered in this case, according to JDB's attorneys, is that JDB at the time was 13 years old, he had been pulled from class, and he was questioned in a room with two police officers, the principal, and the principal's assistant. Counsel for JDB relied heavily on the Supreme Court's opinions in In re Gault [opinion text], which extended Miranda protections to juveniles, and Gallegos v. Colorado [opinion text], in which the court stated that a 14-year-old child is "unable to know how to protect his own interests or how to get the benefits of his constitutional rights." The state argues [brief, PDF] that the petitioner's argument employs a subjective, rather than objective, test which does not comport with Supreme Court jurisprudence on the Miranda warning. Including age in the evaluation would, in the state's view, complicate the job of police as they question individuals. The state contends in its brief that age is a subjective factor, similar to emotional state or level of intoxication in its effect on whether the individual under questioning would feel free to leave.

In Turner v. Rogers [oral arguments transcript; JURIST report], the court will consider whether an indigent individual has a Sixth and Fourteenth Amendment [text] right to counsel in a civil contempt proceeding, where the result of such proceeding was the defendant's imprisonment. The petitioner, Michael Turner, was found to be in civil contempt for failure to pay court-ordered child support payments. Turner's attorneys argue [brief, PDF] that the court did not inform Turner of his right to counsel, and that any competent attorney would have been able to successfully argue that Turner's indigence, a complete defense to a contempt for failure to pay, would have kept Turner out of jail. The state argues [brief, PDF] that the right to counsel only applies in criminal contempt proceedings, but Turner's attorneys argue that here, where the incarceration is punitive and not merely a coercion to recoup the outstanding support payments, Turner is entitled to counsel. The state's argument involves a significant amount of policy background on the problems facing individuals who cannot recover court-ordered support payments, and that theme was reflected in the opening statements of the custodial parent's counsel. A sizable portion of respondent's argument time, however, devolved into matters of procedure and whether certain matters that were discussed, particularly whether the case implicates procedural Due Process, were within the scope of the question presented.




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Uganda police increasingly using torture, killings: HRW
Alexandra Malatesta on March 23, 2011 1:44 PM ET

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[JURIST] The Ugandan government is responsible for an increase in torture, illegal detention and extrajudicial killing of its citizens, according to a report [text] released Wednesday by Human Rights Watch (HRW) [advocacy website]. An agency known as the Rapid Response Unit (RRU), which serves as Uganda's violent crime police task force, is reported to have falsified confessions and utilized beatings with batons, glass bottles and metal sticks to extract information. The report also raises concerns involving journalistic freedom and violations of privacy and speech. The report's summary describes the type of violence instituted by the RRU:
During more than 13 months of research, Human Rights Watch carried out over 100 interviews in regions where R.R.U is most active. ... Drawing on interviews with victims of abuses, as well as current and former RRU employees, researchers documented serious human rights violations by RRU since its formal establishment in 2007. RRU officers routinely use unlawful force during arrest, including beating suspects and, in one instance that Human Rights Watch documented, shooting a handcuffed suspect. RRU personnel were allegedly responsible for at least six extrajudicial killings in 2010 alone, frequent use of torture during interrogations to extract confessions, and prolonged illegal and sometimes incommunicado detention of suspects at RRU headquarters in Kireka, Kampala, and other locations.
The report urges the government to comply with its own constitution [text, PDF] and international human rights law prohibiting torture, cruel, inhuman and degrading treatment. The new RRU commander has promised reform, installing a telephone line for the purpose of receiving complaints.

In 2009, HRW called on Uganda to end what it said was the use of torture and unlawful arrest [JURIST report] by the country's Joint Anti-Terrorism Task Force (JATT). According to HRW, JATT engaged in 106 documented cases of illegal or prolonged detentions between August 2008 and February 2009 and employed torture methods against both Lord's Resistance Army (LRA) [GlobalSecurity backgrounder] rebels and political opponents of the government. JATT alleges that tactics such as concealing arresting officers' identities and affiliations, disorienting suspects by blindfolding them while in transport, failing to inform detainees of the reason for their arrest, long-term incommunicado detention and interrogations involving torture, were employed in the name of combating terrorism, despite being in violation of international law.




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ECJ legal adviser finds ban on genetically modified crops illegal
Daniel Makosky on March 23, 2011 1:01 PM ET

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[JURIST] European Court of Justice (ECJ) [official website] Advocate General Paolo Mengozzi on Tuesday issued an opinion [text, in French] declaring that a French ban on cultivating genetically modified (GM) crops is illegal. In 2008, France sought to prohibit production within its borders of MON 810, a GM strain of maize developed by US-based Monsanto [corporate website], by citing a safeguard clause adopted by the EU in 2004. The clause is designed to allow EU member states to restrict previously approved products in the event that new evidence emerges indicating that the product in question is harmful to either humans or the environment. MON 810 was approved for use by the EU in 1998, and Mengozzi disagrees with applying the clause on the grounds that France imposed its ban without proper European Commission [official website] consultation. Though such opinions are not binding, courts typically adopt the stance set forth by advocates general.

Courts and legislatures around the world have struggled with the increasingly prevalent issue of GM crops. A US judge in December ordered the destruction of a crop [JURIST report] of Monsanto-produced GM sugar beets because of the potentially harmful effect the plants may have on surrounding flora, marking the first time such an order was issued in the US. A week earlier, Germany's Federal Constitutional Court [official website, in German] upheld restrictions on GM crops [JURIST report], including "buffer zones" between GM and conventional crops, after finding that the legislature had acted in the public interest when passing them. The US Supreme Court [official website] ruled [JURIST report] in June in Monsanto Company v. Geerston Seed Farms [Cornell LII backgrounder] that a trial court abused its discretion when it issued a nationwide injunction against a GM alfalfa seed, finding that the order did not satisfy the standard four-factor test to determine the availability of injunctive relief.




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Federal judge rejects Google Books settlement
Dan Taglioli on March 23, 2011 11:59 AM ET

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[JURIST] The US District Court for the Southern District of New York [official website] on Tuesday rejected [opinion, PDF] the amended class action settlement agreement [text, PDF] between Google [corporate website] and groups of authors and publishers who brought a copyright suit [case materials] in 2005 against the internet giant over its book-scanning initiative [Google Book Search website]. The settlement was reached after over two years of negotiations between Google and the Authors Guild [advocacy website], a group seeking to preserve copyright protection for authors, and other plaintiffs including the Association of American Publishers (AAP) [association website], McGraw-Hill, Penguin Group, and Simon & Schuster [corporate websites]. Under the terms of the original settlement agreement, Google would pay $125 million to authors and publishers of copyrighted works. In return, Google would be allowed to display online up to 20 percent of the total pages of a copyrighted book, and would offer users an opportunity to purchase the remainder of any viewed book, regardless of whether Google actually had rights to the material. Judge Denny Chin [biographical materials] wrote in his opinion:
While the digitization of books and the creation of a universal digital library would benefit many, the ASA (Amended Settlement Agreement) would simply go too far. It would permit this class action - which was brought against defendant Google Inc. to challenge its scanning of books and display of "snippets"; for on-line searching - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.
Judge Chin is currently a circuit Judge for the US Court of Appeals for the Second Circuit [official website], but issued his ruling as a district judge, as he had presided over the case before he was elevated to the circuit court.

The original settlement agreement was reached [JURIST report] in October 2008, and arguments on the ASA were heard in February 2010, after which Judge Chin announced [JURIST report] that he would delay ruling on the proposed settlement. Earlier that month the US Department of Justice (DOJ) [official website] filed a statement of interest [JURIST report] urging the court to reject the settlement due to copyright and antitrust concerns, and stating that the agreement would provide Google with "anticompetitive advantages" with potentially monopolistic effects. The DOJ's statement of interest was filed after an official inquiry, which was announced [JURIST report] six months after the original settlement agreement was reached. Meanwhile, concerns had been raised in the European Union and elsewhere that Google's book-scanning initiative violated national copyright laws, especially in France where a Parisian court fined Google [JURIST report] €300,000 euros (USD $430,000) for digitizing books and making excerpts available on the web.




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Yemen parliament approves emergency laws
Matt Glenn on March 23, 2011 9:11 AM ET

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[JURIST] The Yemeni Parliament enacted several emergency measures Wednesday at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. The new laws give the government greater power [AP report] to arrest and detain protesters and to censor the media. The new laws follow Saleh's declaration last Friday of a 30-day state of emergency [JURIST report]. The measure passed easily as many minority party members of the 301-seat parliament did not attend the session. Saleh warned Tuesday that Yemen could face a civil war after opposition leaders rejected his offer to step down by the end of this year. The emergency laws expire in 30 days.

Yemen is not the first country to declare a state of emergency in the midst of anti-government protests in recent weeks. Earlier this month, Bahraini lawmakers called on King Hamad bin Isa Al Khalifa [official website] to declare a state of emergency [JURIST report] and invoke martial law after 5,000 protesters marched to demand an end to the monarchy. Bahrain officially declared martial law [JURIST report] last week. Yemeni authorities have previously been criticized for their counter-terror methods. In August, Amnesty International [advocacy website] criticized methods used by the government [JURIST report] as violations of human rights. These methods included arbitrary arrests, torture, extrajudicial killings and forced disappearances, among other actions taken by security forces.




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South Dakota approves 3-day abortion waiting period
Julia Zebley on March 23, 2011 8:28 AM ET

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[JURIST] South Dakota Governor Dennis Daugaard [official website] signed [press release, PDF] HB 1217 [legislative materials] into law on Tuesday, requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion [JURIST news archive]. The law [text], which passed through the Senate [JURIST report] earlier this month, contains the longest waiting period in the country and provides specifically that counseling must be sought at a "pregnancy help center ... which ... routinely consults with women for the purpose of helping them keep their relationship with their unborn children." The American Civil Liberties Union of South Dakota (ACLUSD) and Planned Parenthood Federation of Minnesota, North Dakota, and South Dakota [advocacy websites] plan to challenge [ACLU press release; Planned Parenthood press release] the law. Daugaard has said he is prepared for the state attorney to defend the law [CNN report] and alluded to a private donor willing to finance the endeavor.

Several state legislatures have acted recently to place restrictions abortions. Last week, the Missouri House of Representatives voted in favor of legislation restricting late-term abortions [JURIST report] and imposing penalties on doctors who fail to comply with the new restrictions. The Oklahoma House of Representatives approved a similar bill [JURIST report] that would ban abortion after 20 weeks of gestation. Last month, the Kansas House of Representatives also approved several new restrictions on abortion [JURIST report]. 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." South Dakota unsuccessfully tried to ban abortions [JURIST report] in 2007.




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UN rights office concerned over violence in Bahrain, Syria, Yemen
Julia Zebley on March 23, 2011 7:31 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday expressed concern [UN News Centre report] over violence against protesters in Bahrain, Syria and Yemen [BBC backgrounders]. Rupert Colville, spokesperson for the OHCHR, held a press briefing [text] detailing human rights violations in the three nations. Speaking on Bahrain, but summarizing the UN's feelings on alleged abuses in all three nations, he said:
It is vital that the authorities scrupulously abide by international standards. People should not be arbitrarily arrested and should not be detained without clear evidence that they have committed a recognized crime. We stress again that demonstrating peacefully is not a crime. Giving an interview to a journalist is not by any stretch of the imagination a crime, nor is reporting human rights abuses.
The OHCHR voiced similar concerns [UN News Centre report] last week toward all three nations. The UN has received reports in Bahrain of arbitrary arrests of political activists, human rights defenders, doctors and nurses; 50–100 people missing; and allegations that protesters are orchestrating such events to smear the government. A report [text] was also released stating that UN human rights experts question the Bahraini government's commitment to human rights. In Syria, reports revolve around security forces responding aggressively and in some cases killing protesters. The UN's concerns in Yemen surround the same issues, with the addition of the deportation of two Al Jazeera [media website] reporters. Also on Tuesday, Yemeni President Ali Abdullah Saleh [official website] offered to resign from office [Al Jazeera report] by the end of the year.

There have been varied protests and government reactions in all three nations throughout March. Opposition leaders were arrested in Bahrain [JURIST report] after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana last week. Days before, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency came just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. A military court in Syria [JURIST report] sentenced a human rights activist accused of harming the country's relations with Iran to 18 months in prison. Ali Abdullah's sentence was based on allegations that he made critical comments against Iran [AP report], thereby harming Syria's relations with a foreign country. In an interview last month, Syrian President Bashar Al-Assad indicated he would push for political reforms including municipal elections and a new media law [Guardian report]. Saleh recently declared [JURIST report] a state of emergency [text, in Arabic] in Yemen. The state of emergency will last 30 days and gives security forces greater powers to maintain order and also includes a ban on citizens carrying arms in public. This followed a promise the week before to create a new constitution [JURIST report] guaranteeing parliamentary and judiciary freedoms. Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen since February, calling for Saleh to step down.




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Supreme Court hears arguments on retaliation protection, attorney's fees
Andrea Bottorff on March 22, 2011 2:49 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Borough of Duryea v. Guarnieri [oral argument transcript; JURIST report] on whether state and local government employees may sue their employers for retaliation under the Petition Clause [FAC backgrounder] of the First Amendment when they petition the government on matters of private concern. The US Court of Appeals for the Third Circuit ruled [opinion, PDF] that government employees can sue their employers for retaliation under the First Amendment. The ruling contradicted decisions by all 10 other federal circuits and four state supreme courts. Counsel for the respondent Guarnieri said that the Petition Clause does not distinguish between a petition based on public concern and a personal "grievance." Counsel for the petitioner Borough of Duryea argued that disregarding the First Amendment's public concern requirement [FAC backgrounder] "would constitutionalize, under the Petition Clause, large parts of the law of public employee discipline, and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy."

In Fox v. Vice [oral arguments transcript, PDF; JURIST report], the court heard arguments [day call, PDF; merit briefs] on whether federal statute 42 USC § 1988 [text] permits the court to award defendants attorney's fees based on an action dismissing a claim when the plaintiff also asserts non-frivolous claims. The court will also consider if it is improper to award defendants the full amount of attorney's fees incurred while defending non-frivolous claims along with a frivolous claim. The US Court of Appeals for the Fifth Circuit affirmed [opinion, PDF] the granting of attorney's fees. Counsel for the petitioner Fox argued that the lower court decision violates Congress' intention "to protect defendants from the lying or the vexatious plaintiff who shouldn't be in court at all." Counsel for the respondent Vice argued that the federal statute rightly allows for defendants to receive attorney's fees from plaintiffs, even if the plaintiff wins the case, if the plaintiff filed any frivolous claims.




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Germany prosecutor requests 6-year sentence for alleged Nazi guard
John Paul Putney on March 22, 2011 2:10 PM ET

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[JURIST] Germany prosecutors called Tuesday for a six-year sentence in the trial of John Demjanjuk [NNDB profile, JURIST news archive], accused of having helped to murder 27,900 Jews at the Sobibor death camp during his time as a guard there. The Ukrainian-born Demjanjuk, now 90 years old, was allegedly among Soviet prisoners-of-war recruited to work at the death camps by the SS [BBC report]. Demjanjuk, however, has denied the charges against him and insisted he was a prisoner-of-war [AP report] for most of the remainder of the conflict. The prosecution requested conviction on all 27,900 counts of accomplice to murder, which carries a maximum sentence of 15 years. Germany disallows consecutive sentencing, and the prosecutor requested only six years because of Demjanjuk's advanced age and because he was already jailed for eight years in Israel [AFP report] before his conviction was overturned [JURIST archives] by the Israeli Supreme Court. A verdict is expected sometime in May.

Demjanjuk's trial, which began in November 2009, has been marked by extensive delay. In addition, the Spanish National Court [official website, in Spanish] announced in January that it is seeking the extradition of Demjanjuk [JURIST report] so he can stand trial on charges relating to his alleged involvement with the Flossenburg [HRP backgrounder] concentration camp where 60 Spanish citizens were killed during World War II. Last May, a German court denied a motion to dismiss the charges [JURIST report] filed by the defense, which argued there was a lack of credible evidence. The court rejected the argument, saying they found the evidence against Demjanjuk to be strong. In October 2009, Demjanjuk was found fit to stand trial after the court rejected appeals relating to his health [JURIST reports], although the court has limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany after the US Supreme Court [official website] denied his stay of deportation [JURIST report].




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California court delays implementation of cap-and-trade program
Ashley Hileman on March 22, 2011 1:19 PM ET

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[JURIST] The San Francisco Superior Court [official website] notified parties Monday of a ruling that acts to delay the implementation of a cap-and-trade program by requiring California's Air Resources Board (ARB) [official website] to further analyze alternatives. While the court's Friday decision does not officially preclude the ARB from adopting or implementing the program in the future, it could delay the process as the ARB will now have to conduct additional research [San Francisco Chronicle Report] on other available options and report back as to why the cap-and-trade program is superior as well as invite public comment on the issue. The suit against the ARB was brought by the Center on Race, Poverty and the Environment [advocacy website], an environmental justice group that is representing other similar grassroots groups. Collectively, they argue that cap-and-trade programs, which establish limits on greenhouse gas emissions [JURIST news archive], are still inadequate because they allow major emitters to buy credits from others instead of actually reducing their own emissions, ultimately endangering communities often composed of poor minorities.

The proposed cap-and-trade program is a major part of Assembly Bill 32 (AB 32) [text, PDF; official backgrounder]. In December, the ARB approved measures [JURIST report] for the cap-and-trade program, which would provide incentives to companies and factories that decrease their greenhouse gas emissions. The provisions include a permit system in which companies are allotted a quota of greenhouse emissions. If a company does not use all of its quota, it can sell to a company that is going to exceed its quota. Companies that exceed their quota can purchase "offsets" from companies involved in activities that lessen greenhouse emissions, like forestry. The program is reportedly the first of this type in the country. Supporters of the bill in California say they felt compelled to enact AB 32 after Congress failed to approve greenhouse gas reduction legislation. They hope they other states will follow suit. AB 32 was first signed into law [JURIST report] by former California governor Arnold Schwarzenegger in 2006.




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Supreme Court rules on anti-retaliation statute language
Maureen Cosgrove on March 22, 2011 12:27 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 6-2 in Kasten v. Saint-Gobain Performance Plastics Corp. [Cornell LII backgrounder; JURIST report] that the language "filed any complaint" of the Fair Labor Standards Act (FLSA) [text, PDF] refers to both oral and written complaints. Kasten brought an anti-retaliation suit against the respondent under the FLSA anti-retaliation provision [29 USC § 215(a)(3) text] arguing he was wrongfully discharged from employment for orally complaining to company officials about the location of timeclocks at the facility. The FLSA prohibits employers from terminating employment based on complaints "filed" by employees. Kasten verbally communicated his grievances about the location of the timeclocks to human resource managers, in compliance with the company's employee policy handbook. Saint-Gobain argued that the FLSA was not designed to protect employees only, but was established to ensure that employers had fair notice of employee grievances. The court pointed out that other similar statutes have been interpreted to include oral statements, and administrators and legislators have consistently held that similar language is meant to include oral complaints. Justice Stephen Breyer, writing for the majority, also considered policy reasons supporting its interpretation of the contested language:
Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the Act's complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? ... To limit the scope of the antiretaliation provision to the filing of written complaints would also take needed flexibility from those charged with the Act's enforcement. It could prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints. And insofar as the antiretaliation provision covers complaints made to employers [...], it would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act.
The court ultimately vacated and remanded the case. Justice Antonin Scalia, joined by Justice Clarence Thomas, filed a dissent arguing that the statutory language does not apply to intra-company complaints in the first place.

Saint-Gobain initially claimed that, because the anti-retaliation provision applies only to complaints filed with the government, it is exempt from suit since Kasten's complaints were directed to a private employer. The Supreme Court refused to address this argument because, though Saint-Gobain raised and ultimately lost this argument in the lower courts, the company did not address the issue in its response to Kasten's petition for certiorari. Justices Scalia and Thomas disagreed with the majority, suggesting that the court has previously permitted parties to defend a judgment on grounds not raised in the brief in opposition when doing so is "predicate to an intelligent resolution of the question presented, and therefore fairly included therein." In an earlier suit brought by Kasten, the US District Court for the Western District of Wisconsin [official website] held [opinion, PDF] that Saint-Gobain violated the FLSA by placing timeclocks in a location that prevented workers from receiving credit for time they spent dressing in work-related protective gear.




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Ukraine prosecutor investigating former president's role in journalist murder
Sarah Posner on March 22, 2011 12:22 PM ET

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[JURIST] Ukrainian state prosecutors announced a criminal investigation Tuesday against former president Leonid Kuchma [BBC profile] for his alleged involvement in the 2000 murder of opposition journalist Heorhiy Gongadze. The criminal investigation is based on Kuchma's suspected abuse of power [BBC report] and illegal orders, which led to the journalist's murder. Gongadze was an outspoken critic of Kuchma, who was then implicated in the murder [JURIST report] through secret recordings, but denied any involvement.

In 2000, Gongadze was kidnapped by ex-police officers, beaten, strangled, beheaded and buried. Following Gongadze's murder, in 2008, three former police officers were convicted and sentenced to jail [JURIST report] by a Ukrainian court for their roles in carrying out the murder. Mykola Protasov was sentenced to 13 years, while Valeriy Kostenko and Oleksandr Popovych each received a 12-year sentence. In 2006, the trial of the former police officers began [JURIST report], but those who ordered the murder had not been found. In 2005, the commission investigating the murder said that the voices of Kuchma, Parliament speaker Volodymyr Lytvyn and other officials were heard on recordings where they were allegedly conspiring against Gongadze. The inquiry also accused Kuchma of ordering Gongadze's kidnapping and murder.




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Supreme Court allows suit against Zicam maker to proceed
Zach Zagger on March 22, 2011 11:36 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] that a shareholder class action suit can continue against Matrixx Initiatives [corporate website], the maker of Zicam Cold Remedy, for failure to disclose harmful side effects that were not statistically significant. The shareholders alleged that Matrixx failed to disclose reports of a possible link between the active ingredient in Zicam and loss of smell and that, in light of these reports, had made misleading statements to the public about Zicam's possible side effects. The unanimous opinion by Justice Sonia Sotomayor in Matrixx Initiatives, Inc. v. Siracusano [Cornell LII backgrounder] held that the respondents representing the shareholders had stated a claim under § 10(b) of the Securities Exchange Act of 1934 and Exchange Commission Rule 10b-5 [texts] for employment of a manipulative or deceptive device. These laws require that the shareholders allege that Matrixx intentionally disclosed material information to investors. Matrixx claimed that the link between Zicam and loss of smell was not material because it was not statistically significant. The Supreme Court did not agree with such a bright-line rule:
Although in many cases reasonable investors would not consider reports of adverse events to be material information, respondents have alleged facts plausibly suggesting that reasonable investors would have viewed these particular reports as material. Respondents have also alleged facts giving rise to a strong inference that Matrixx acted with the required state of mind.
The court reasoned that oftentimes medical experts and the Food and Drug Administration rely on less than statistically significant data to prove causation and that a reasonable investor may be inclined to do the same. Matrixx also argued that that the shareholders did not allege facts sufficient to prove the scienter requirement. However, the court held the shareholders met their burden because, assuming the alleged facts to be true, there was a cogent and compelling inference that Matrixx withheld disclosure to prevent harmful impacts on the marketing of Zicam.

The decision upholds the US Court of Appeals for the Ninth Circuit [official website] ruling [opinion, PDF] in favor of the shareholders. Counsel for Matrixx had argued during oral argument [JURIST report] that the reports do not establish any reliable facts about the drug and that a duty to report these results would unfairly affect the company. Matrixx claimed that, absent evidence that "the company has knowledge of facts establishing a reliable basis for inferring that the drug itself is the cause of the reported event," neither the materiality nor scienter requirements of the securities laws were violated.




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Israel ex-president sentenced to 7 years on rape conviction
Matt Glenn on March 22, 2011 9:08 AM ET

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[JURIST] The Tel Aviv District Court [official website, in Hebrew] sentenced former Israeli president Moshe Katsav [BBC backgrounder; JURIST news archive] to seven years in prison Tuesday for sexually assaulting three women. The court convicted Katsav [JURIST report] in December, finding that he had assaulted a female employee of the Department of Tourism during his time as minister and two women at the President's Residence during his time as president. Katsav must also serve two years of probation [Haaretz report] and pay a total of 125,000 NIS ( USD $35,500) to his victims. The judge reading the sentence cited Katsav's pattern of repeated abuse [Jerusalem Post report] as a reason for the long sentence. In a minority opinion, one judge argued that Katsav should face only four years in prison. Katsav has continued to maintain his innocence, and his lawyer said he will appeal the sentence [Jerusalem Post report], which is scheduled to begin May 8. Katsav is the highest ranking Israeli official ever sentenced to jail.

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




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Germany court rules Google Street View legal
Maureen Cosgrove on March 22, 2011 8:44 AM ET

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[JURIST] A Berlin high court has ruled [judgment, in German; press release, in German] that Google's Street View mapping service is legal in Germany. Last year, a woman sued Google [corporate website; JURIST news archive] alleging that photos posted on Google Street View of the woman, her family and the front of her house violated her property and privacy rights. The court held last week that, because the photos were taken from the street, Google did not violate her property rights. Furthermore, the court found no further violations because Germans can opt out of the service, and Google blurs faces and license plates in the posted images. The ruling was narrowly focused on property rights [DW report], ignoring larger data protection issues the company is currently confronting. The high court's ruling cannot be appealed.

Google has recently faced a number of allegations from the international community related to violating privacy laws by capturing personal data through Google Street View cars, used for its Google Maps service. Most recently, the French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google 100,000 euros (USD $141,300) this week for violating French data privacy laws [press release, in French; JURIST report]. In November, the UK Information Commissioner's Office [official website] found that Google had committed a "significant breach" [JURIST report] of the Data Protection Act [text] and required that Google delete the payload data it collected in the UK and implement employee training on privacy principles, security awareness and the Data Protection Act. Other countries, including Canada, Australia and Spain [JURIST reports], have launched similar investigations into the privacy breach. The US Federal Trade Commission (FTC) [official website] ended its inquiry [JURIST report] into Google's data collection through Street View cars after Google assured the FTC that it did not use any of the collected data and announced that it was committed to compliance with privacy laws [text], instituting new training on privacy principles and appointing a new director of privacy.




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Supreme Court hears arguments on exclusionary rule
Ann Riley on March 21, 2011 4:50 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF] Monday in Davis v. United States [oral arguments transcript, PDF; JURIST report] on the Fourth Amendment [text] exclusionary rule [Cornell LII backgrounder]. The issue is whether the rule requires the suppression of evidence obtained from a search permitted by the US Court of Appeals for the Eleventh Circuit decision in United States v. Gonzalez [opinion text] after the court overturned Gonzalez in Arizona v. Gant [opinion, PDF; JURIST report]. The Eleventh Circuit refused to apply the exclusionary rule, holding [opinion, PDF] that the search was objectively reasonable when relying on then-binding precedent and that the good faith exception allows the use of evidence obtained under reasonable reliance on well-settled precedent. Counsel for the petitioner argued that the court should reverse the good faith principle, saying:
The Court has to properly construe the Fourth Amendment and the police need to then properly follow the Court's precedents. The Court can't turn away from the role of this Court's precedents in the enforcement of the Fourth Amendment. ... Under the government's proposed rule, defendants would have a limited ability to challenge precedents that construe the Fourth Amendment too narrowly, but of course of government would be free in any case to challenge precedents that the government believes construes the Fourth Amendment too broadly. The concern is that over time that would lead to an asymmetry in the Court's outcomes, not as a result of the measured judgments of this Court, but rather as a result of the incentives on counsel, and the Court should strive to avoid that sort of result.
Counsel for the government argued that the exclusionary rule is not a personal individual right or a constitutional right, but rather a remedy the court has devised after finding a Fourth Amendment violation. "The purpose of the exclusionary rule is to deter future conduct by other counterparts of that police officer or the police officer himself, so that when he confronts the situation in the future he will be more solicitous of Fourth Amendment rights." The government explained that if the court adopted another purpose for the rule, it would depart from its consistent holdings of the rule's purpose and "create pressure for litigants to urge that additional policy interests of the administration of justice would be served."

In Tolentino v. New York [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the exclusionary rule prohibits police from using a defendant's driving record compiled by the state's Department of Motor Vehicles (DMV) obtained after illegally stopping the defendant. The Court of Appeals of New York held that the exclusionary rule does not bar police from using evidence that a driver had his license suspended 10 previous times after police allegedly illegally stopped the vehicle. Counsel for the petitioner argued that the DMV records were fruit of the poisonous tree, saying:

The problem with the categorical rule, is that it will create a fresh incentive for police officers to make these kind of suspicionless stops, and so it will encourage police to violate the Fourth Amendment. ... [T]his Court has always defined evidentiary fruit as something of evidentiary value which the public authorities have caused an arrested person to yield to them during an illegal detention ... the DMV records would fit that definition of evidentiary fruit. In this case, because it is the classic situation where there's sufficient causal connection between the Fourth Amendment violation and the subsequent discovery of the evidence to justify suppression, there's no reason not to apply the exclusionary rule here, and in fact, it meets all the definition of the sort of case where there would be very high level of deterrence as a result of applying the exclusionary rule.
Counsel for the government argued that the DMV records should not be subject to suppression as they were already in the government's possession and therefore are not fruit of the poisonous tree or the product of any illegal government activity.




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Federal appeals court reinstates wiretapping suit
Erin Bock on March 21, 2011 3:51 PM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [decision, PDF] Monday that the plaintiffs in Amnesty v. Blai [ACLU materials] have standing to sue the US government over the constitutionality of a federal eavesdropping law, reinstating their lawsuit. The plaintiffs, including attorneys, journalists and rights organizations, facially challenged [JURIST report] Section 702 of the Foreign Intelligence Surveillance Act (FISA) [50 USC § 1881(a)], which was added by the FISA Amendments Act of 2008 (FAA) [HR 6304 materials]. The law created procedures to allow electronic government surveillance of individuals living outside of the US for foreign intelligence purposes. The plaintiffs alleged that the law violated the Fourth Amendment, First Amendment and Article III of the Constitution. A 2009 ruling [JURIST report] from the US District Court in Manhattan found that the plaintiffs lacked standing because they did not suffer an injury in fact and dismissed the suit. Plaintiffs appealed and argued that the fear of future government surveillance while performing work-related activities such as conducting interviews with possible targets caused an injury in fact through "economic and professional costs" expended to protect themselves. They also alleged that the law chilled their freedom of speech. The circuit court determined that this did constitute standing because the law directly affects them:
[T]he FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored.
The American Civil Liberties Union (ACLU) [advocacy website], a plaintiff in the case, declared the ruling a victory [press release] and applauded the court's decision to allow the law to be challenged.

Last month, the ACLU chided the Senate's decision to extend surveillance provisions of the USA Patriot Act [JURIST report]. The measures were set to expire on February 28, and the vote was seen as a delay tactic to allow for further debate about the provisions, which include roving wiretaps, "lone wolf" terrorism suspects and the government's ability to seize "any tangible items" in the course of surveillance. The Obama administration released a statement of administration policy [text, PDF] earlier in February calling for a three-year renewal of the provisions. The provisions were previously extended in February 2010 at the request [JURIST reports] of the Obama administration.




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Wisconsin AG asks court to block order halting union bargaining law
Jennie Ryan on March 21, 2011 2:58 PM ET

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[JURIST] Wisconsin Attorney General JB Van Hollen (R) [official website] asked the state's Court of Appeals [official website] on Monday to block [motion, PDF] an order issued last week temporarily halting a legislative measure designed to curb the collective bargaining power of unions. Van Hollen's office filed the motion seeking temporary relief from a Dane County Circuit Court [official website] order [text; JURIST report] enjoining Wisconsin Secretary of State Douglas La Follette [official website] from publishing the Budget Repair Bill [SB 11 text, PDF], thus giving it the effect of law. He also asked for leave to appeal the order and for relief consisting of an order to stay the circuit court's ruling. Van Hollen argues that the Dane County Circuit Court did not have jurisdiction to hear the case because the four named defendants, who are all state legislators, enjoy legislative immunity during the regular legislative term. He also argued that the circuit court did not have jurisdiction to enjoin the publishing of the law:
Contrary to established case law, the trial court injected itself into the legislative process and enjoined a legislative act. There is absolutely no authority for the broad, over reaching step taken. In the interests of the administration of justice, it is necessary—nay, it is imperative—that this Court step forward and undo this inappropriate act. ... It is only after the ministerial, non-discretionary act of publication—that is after the law is in force—that a trial court my visit the issue of constitutionality of the law.
The next hearing in the case is scheduled to begin March 29.

The lawsuit [JURIST report], filed last week by Dane County District Attorney Ismael Ozanne (D) [official website], alleges that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice—or two hours if there is an emergency—before a public meeting. Ozanne's suit was the second such challenge by a state official, following a similar suit [complaint] filed by Dane County Executive Kathleen Falk (D) [official profile]. The provisions of the Budget Repair Bill limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since mid-February, when the bill was introduced. The bill was signed [JURIST report] into law by Governor Scott Walker (R) [official website] on March 11.




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Federal judge declines to rule on Blagojevich 'cancel trial' request
LaToya Sawyer on March 21, 2011 2:36 PM ET

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[JURIST] A federal judge on Monday declined to formally rule on the request by former Illinois governor Rod Blagojevich [JURIST news archive] to cancel his retrial [JURIST report], claiming that the motion was neither serious, nor did it raise a legal question. Earlier this month, Blagojevich's lawyers submitted a motion [text] to cancel the ex-governor's retrial and sentence him only on the single charge on which he was originally convicted. Blagojevich was found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. His attorneys, who had worked without pay, argued that a retrial was an economic hardship and an unnecessary drain on taxpayer funds. Beyond suggesting that the request was made primarily to arouse public attention, the judge clarified the motion was improperly presented and, therefore, could not be ruled upon. Blagojevich's defense team was granted additional time to file a proper motion, even though the court predicts the issue will dissipate with time. If convicted of making false statements to the FBI, Blagojevich faces a maximum five-year prison sentence.

Last month, a judge for the US District Court for the Northern District of Illinois [official website] granted federal prosecutors' motion to dismiss three charges [JURIST report] against Blagojevich in an apparent effort to simply their case before the April 20 retrial. 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. In September, lawyers for Blagojevich asked the judge to throw out the sole conviction, stating that the government failed to meet its required burden of proof, but the judge refused [JURIST reports]. In January 2009, the Illinois State Senate voted unanimously to convict Blagojevich of abuse of power and remove him from office [JURIST report].




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Supreme Court allows Federal Reserve data release order to stand
Ashley Hileman on March 21, 2011 1:07 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in Clearing House Association LLC v. Bloomberg LP [docket], leaving in place a ruling [JURIST report] requiring the Federal Reserve [official website] to release information regarding loans it made to various banks during April and May 2008, a key time in the financial crisis. While the Federal Reserve did not choose to appeal the decision of the US Court of Appeals for the Second Circuit to the Supreme Court, it was appealed by the Clearing House Association [association website], which consists of a group of banks. Following the court's decision, the Federal Reserve Board reported that it will release the emergency-lending data [Bloomberg report, video]. According to the court's order, it has five days to do so. The data will include information about the specific banks that were in financial trouble and as a result, asked for assistance from the Federal Reserve. The Supreme Court also denied certiorari in a companion case brought by Fox News, requiring the Federal Reserve to disclose loan information from the period between August 2007 and November 2008.

Bloomberg originally sued the Federal Reserve under the Freedom of Information Act (FOIA) [text, PDF], and both the court of appeals and the trial court rejected the latter's argument that the records sought fell within FOIA exceptions. Now the Federal Reserve has an even greater duty to release the information under the Dodd-Frank Wall Street Reform and Consumer Protection Act [text, PDF]. The Act was signed into law [JURIST report] by President Barack Obama in July 2010 and created a new regulatory council, the US Financial Stability Oversight Council (FSOC) [official website], to monitor financial institutions in order to prevent companies from becoming "too big to fail." The FSOC convened for the first time [JURIST report] in October 2010. In addition to creating the FSOC, this legislation also gives the Federal Reserve new oversight over the largest financial institutions, creates a bureau of consumer protection, introduces multitudes of new regulations on derivatives and other financial instruments and limits the amount of capital banks can invest in hedge funds.




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France commission fines Google for violating data privacy laws
Michael Haggerson on March 21, 2011 12:55 PM ET

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[JURIST] The French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google [corporate website] 100,000 euros (USD $141,300) on Monday for violating French data privacy laws [press release, in French] by capturing personal data through Google Street View cars, used for its Google Maps service. CNIL stated that Google was not responding to requests in a timely manner and has not stopped using the seized data. Google admitted [blog post] to the collection of e-mails, passwords and other data over unsecured WiFi networks, but maintained that it was a mistake and that it did not intend to include the code which captured payload data from unsecured WiFi networks. In response to the controversy, Google grounded its Street View cars. The company claims that it is currently seeking assistance in deleting the data, but CNIL found that the data collection was continuing through Google's geolocation service Latitude.

In November, the UK Information Commissioner's Office [official website] found that Google had committed a "significant breach" [JURIST report] of the Data Protection Act [text] and required that Google delete the payload data it collected in the UK and implement employee training on privacy principles, security awareness and the Data Protection Act. Other countries, including Canada, Australia and Spain [JURIST reports], have launched similar investigations into the privacy breach. The US Federal Trade Commission (FTC) [official website] ended its inquiry [JURIST report] into Google's data collection through Street View cars after Google assured the FTC that it did not use any of the collected data and announced that it was committed to compliance with privacy laws [text], instituting new training on privacy principles and appointing a new director of privacy.




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Supreme Court to examine whether death penalty appeal can continue despite missed deadline
Zach Zagger on March 21, 2011 11:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] will determine whether an appeal of a capital murder conviction can continue despite the prisoner's lawyers failing to meet a paperwork deadline, in one of two cases in which the court granted certiorari [order list, PDF] Monday. In Maples v. Allen [docket; cert. petition, PDF], the court will review a decision by the US Court of Appeals for the Eleventh Circuit that held [opinion, PDF] the state of Alabama may execute Cory Maples without federal habeas review of his constitutional claims due to a missed appeal deadline that was no fault of the prisoner's. The Alabama trial court had dismissed Maples' petition for post-conviction relief and sent notice of this ruling to the prisoner's attorneys, but the notice was returned to the court unopened and stamped returned to sender because the attorneys had left that firm. The court did nothing with this, and the deadline to appeal the ruling passed. Maples was convicted of capital murder for killing two people after a night of drinking. He had argued his counsel was ineffective because it failed to present evidence of his intoxication and his drug history, which he believed would have mitigated his sentence. He also argued the trial court failed to give proper jury instructions by not including the lesser offense of manslaughter by voluntary intoxication under Alabama law.

In Rehberg v. Paulk [docket; cert. petition, PDF], the court will examine a circuit court split over whether government officials who act as "complaining witnesses" to initiate a prosecution by providing false testimony are are immune to civil suits. The petitioner Charles Rehberg is asking the court to clarify the application of two conflicting Supreme Court precedents in Briscoe v. Lahue and Malley v. Briggs [opinions]. In Briscoe, the court held that a police officer who allegedly committed perjury was immune from civil liability. However, in Malley, the court allowed a suit against a police officer for wrongfully causing an arrest warrant to be issued, reasoning that the officer was acting as a "complaining witness." The circuit courts are split over which precedent to apply when a government official provides testimony as a complaining witness. Rehberg argues that Dougherty County District Attorney's office in Georgia falsely accused him of various crimes after he publicized unethical billing practices of a local hospital to which the district attorney allegedly had political connections.




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Benin court confirms presidential election results amid fraud allegations
Dwyer Arce on March 21, 2011 10:45 AM ET

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[JURIST] The Constitutional Court of Benin on Monday confirmed provisional election results in the country's March presidential election, securing the reelection of President Thomas Boni Yayi [official websites, in French]. Yayi secured 53 percent of the vote, allowing him to avoid a runoff [L'araignee report, in French] in his campaign for another five-year term in office. His closest competitors, Me Adrien Houngbedji and Abdoulaye Bio Tchane secured only 35 and 6.4 percent of the vote, respectively. Despite being judged as a free and fair election by the Economic Community of West African States (ECOWAS) and the African Union (AU), both Houngbedji and Tchane alleged fraud and irregularities in the vote [Bloomberg report]. The court's action comes after partial results were released [AFP report] Friday by the National Autonomous Electoral Commission (CENA), indicating the same result. Earlier this month, Constitutional Court approved a second postponement [JURIST report] of presidential elections following complaints that over one million people were not registered to vote. The court delayed the date of the presidential election from March 6 to March 13, holding that the electoral commission would not otherwise have enough time to implement measures to ensure a credible election.

Benin's presidential election was initially scheduled for February 27. The Beninese Constitution [text] requires that the first round of presidential voting be held 30 days prior to the end of the current president's term, which is on April 6. The National Assembly [official website, in French], Benin's parliamentary body, approved a law that overruled the constitutional provision and would allow the election postponement. Benin, a small country bordering Nigeria, is considered to be one of the most stable democracies in the region [BBC backgrounder], with a vibrant party system and civil society. However, the country remains underdeveloped and plagued by corruption.




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Rights group urges India to reform Kashmir detention law
Sarah Paulsworth on March 21, 2011 9:05 AM ET

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[JURIST] Hundreds of people are being held without charge or trial in India's northernmost state Kashmir and Jammu, according to a report [text, PDF] released by Amnesty International (AI) [advocacy website] on Monday. AI reports that India's Public Safety Act (PSA) [text] is being used to detain people despite the absence of sufficient evidence for a trial. Over the last decade, between 8,000 and 20,000 people have been detained through the PSA, including 322 between January and September 2010. The PSA only applies to Kashmir and Jammu, a state that has been rife with unrest since it became part of India in the middle of the 20th century. People detained under the PSA can be held for up to two years, but AI notes that the successive orders are often issued, resulted in detentions that exceed two years. In addition, AI claims that the detainees do not have effective legal recourse to challenge their detention and are sometimes subjected to ill-treatment and torture. AI's Asia-Pacific Director Sam Zarifi said:
The use of administrative detention does not conform to international human rights legal obligations and agreements that the Indian government is a party to. The Indian government must ensure that Jammu and Kashmir authorities repeal the PSA and end the odious system of administration detention once and for all.
AI is calling on India's government and the local government in Kashmir and Jammu to carry out an independent, impartial and comprehensive investigation into allegations of abuses against detainees and their families, including allegations of torture and other ill-treatment, denial of visits and medical care, making its findings public and holding those responsible to account.

Kashmir and Jammu, which is officially part of India, has been disputed [BBC backgrounder] between Pakistan and India since 1947. Claims by both Pakistan and India to the territory have resulted in several conflicts in the region, particularly the Indo-Pakistan wars of 1947-1948 and 1965. In addition, there was a large show of military force by both nations in the region in 2002 that caused international alarm because both nations have nuclear weapons. India has sought to stifle unrest and a burgeoning separatist movement in the region by detaining human rights and political activists.




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Egypt citizens overwhelmingly in favor of constitutional reform
Carrie Schimizzi on March 20, 2011 1:35 PM ET

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[JURIST] An overwhelming majority of citizens in Egypt voted "yes" to several proposed constitutional amendments in a national referendum that took place on Saturday, according to preliminary results released Sunday. According to a source from the high judicial committee overseeing the referendum, voter turnout reached 60 percent and 70 percent of voters approved constitutional reform that would allow Egypt's military rulers to proceed with the new election process, with parliamentary elections taking place as early as September [Reuters reports]. The majority approval is a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against former president Hosni Mubarak [Al Jazeera profile]. The referendum was a stark contrast [BBC report] from previous elections under Mubarak, where results where pre-determined and voter turnout was extremely low. Both the National Democratic Party and the Muslim Brotherhood [party website] supported the amendments to Egypt's constitution [text], which include lowering the presidential term limit and mandating new criteria for potential presidential candidates. The referendum vote, however, was not without some controversy. Four human rights groups, including the New World Foundation for Development and Human Rights [official website], filed a complaint [report] with the judiciary committee claiming irregularities during the referendum vote. Among the allegations are that voters were being influenced at the polls, no judges were present at several polling stations and that other stations had run out of ballots and were printing and using unofficial ballot papers. The official results of the referendum are expected to be announced on Sunday evening.

The Egyptian Supreme Council of the Armed Forces last month announced the formation of the judicial committee [JURIST report] to oversee amending the Egyptian constitution. When the council assumed power, 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 followed the intentions of ousted president Mubarak, who had approved the formation of a panel [JURIST report] to amend the constitution before he resigned. 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." Last month, 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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Missouri House passes bill restricting late-term abortions
Maureen Cosgrove on March 19, 2011 2:39 PM ET

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[JURIST] The Missouri House of Representatives [official website] on Thursday voted 119-38 in favor of legislation [HB 213, PDF] restricting late-term abortions [JURIST news archive] and imposing penalties on doctors who fail to comply with the new restrictions. The legislation, which is slated to become effective at the end of August, bans abortions of "viable" fetuses. The legislation would provide some exceptions, permitting abortions of viable fetuses only when the woman's life is endangered by a physical illness or disability, or when continued pregnancy poses the risk of substantial physical impairment to the pregnant woman. The legislation further requires a concurring opinion from a second physician before the abortion of a viable fetus can be performed. Doctors who abort viable fetuses in violation of the late-term abortion law could face up to seven years in prison and fines between $10,000 and $50,000. Missouri Right to Life [advocacy website] applauded the passage of the legislation [press release]:
While abortion at any stage of development is an offense against human dignity, certainly we can all agree that subjecting unborn children to the horrible pain of abortion is unacceptable in a civilized society. Unborn Children are the most vulnerable members of the human family and cannot speak for themselves. Our shared humanity compels us to protect the most vulnerable among us, and we are grateful to Rep. Jones and all the Democrats and Republicans who supported this legislation.
The bill will now proceed to the Missouri Senate [official website] for debate and voting.

Several state legislatures have acted recently to place restrictions abortions. Last week, the Oklahoma House of Representatives approved a similar bill [JURIST report] that would ban abortion after 20 weeks of gestation. Last month, the Kansas House of Representatives approved several new restrictions on abortion [JURIST report]. 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."




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UN rights council adopts outcome of US review
Erin Bock on March 19, 2011 1:04 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] on Friday held a debate and adopted the outcomes [press release] from its Universal Periodic Review (UPR) of the US. The review provided the US with 228 recommendations in 10 different areas regarding human rights policies and practices. Harold Hongju Koh [academic profile], a representative of the US Department of State (DOS), accepted recommendations made regarding immigration rights and stated that the government was in the process of reviewing its handling of refugee cases. The US was commended for continuing to protect the environment and also for its initiatives in the fight against human trafficking. Members of the committee condemned the US for rejecting many of the recommendations without reason. Among others, the US rejected calls to ban racial discrimination and religious profiling, close the Guantanamo Bay facilities, and abolish the death penalty. Koh argued that capital punishment was not precluded by international law. He urged delegations to look at the bigger picture of the progress the US has made regarding human rights and justice instead of looking at individual recommendations. Koh called the Universal Periodic Review an "ongoing process."

Koh echoed objections he made when the recommendations were first issued [JURIST report] in November. In August, the DOS released its own human rights review [JURIST report] and presented the report to the UNHRC. In the report, the DOS acknowledged the US government's historical struggle with some human rights issues including gender and racial equality, but noted the progress made in both areas. The Obama administration received criticism from both human rights groups and US politicians for initially not taking part [press release] in the UPR sessions, a process which each of the 192 UN member states must undergo every four years [JURIST comment]. This marks the US government's first UPR evaluation before the UNHRC. The US was elected to the UNHRC [JURIST report] in May 2009. The UNHRC was created [JURIST report] in 2006, at which time the Bush administration declined to seek a Council seat or participate in its proceedings due to a perceived anti-Israeli sentiment.




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Yemen president declares state of emergency
Erin Bock on March 19, 2011 12:12 PM ET

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[JURIST] Yemeni President Ali Abdullah Saleh [official website, in Arabic] declared a state of emergency [text, in Arabic] throughout the country on Friday. The state of emergency will last 30 days and gives security forces greater powers to maintain order and also includes a ban on citizens carrying arms in public. There is also a possibility that the state of emergency includes a curfew. The decree came after 25 protesters were killed [Reuters report] on Friday at an anti-government rally in the country's capital of Sana'a. Police were present at the rally to ensure control, but Saleh stated at a press conference [statement, in Arabic] that the police did not use live rounds on the crowd and that the shootings were the result of confrontations between protesters and local residents. Saleh stated that a "committee of neutral bodies" will investigate the incident and called those killed during the protest "martyrs of democracy."

Yemen is not the first country to declare a state of emergency in the midst of anti-government protests this week. On Sunday, Bahraini lawmakers called on King Hamad bin Isa Al Khalifa [official website] to declare a state of emergency [JURIST report] and invoke martial law after 5,000 protesters marched to demand an end to the monarchy. Bahrain officially declared martial law [JURIST report] on Tuesday. Yemeni authorities have previously been criticized for their counter-terror methods. In August, Amnesty International [advocacy website] criticized methods used by the government [JURIST report] as violations of human rights. These methods included arbitrary arrests, torture, extrajudicial killings and forced disappearances, among other actions taken by security forces.




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UN warns Ivory Coast shelling may be war crime
John Paul Putney on March 18, 2011 4:05 PM ET

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[JURIST] The UN peacekeeping operation (UNOCI) [official website] in the Ivory Coast [BBC country profile; JURIST news archive] on Thursday denounced the shelling of a market [press release, in French] in the capital Abidjan which killed 25 to 30 civilians and injured scores more, calling it a possible war crime. In the statement, UNOCI condemned the use of violence against civilians:
The authors of these abusive acts, which constitute flagrant violations of human rights, will not go unpunished. UNOCI reserves the right to take appropriate measures to prevent such acts in the future, in compliance with our mandate to protect the civilian population.
UNOCI confirmed on Friday that pro-Gbagbo security forces used 81mm mortars and indicated the attack on civilians may constitute a crime against humanity [press release, in French]. Gbagbo's government has denied shelling civilians [BBC report], calling the accusations part of a conspiracy between the UN, Ouattara's supporters and France to oust Gbagbo. UNOCI recently updated the death toll following the November elections to 410 [AFP report], not including those killed in recent days.

Violence in the Ivory Coast has steadily increased since the disputed elections in November. Earlier this week, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] called for an independent investigation into post-election violence [JURIST report] in the Ivory Coast as part of a report [text, PDF] to the UN Human Rights Council (UNHRC) [official website]. In January, UN Secretary General Ban Ki-moon [official website] rejected the proposed recount [JURIST report] of November's Ivory Coast presidential runoff election results as a "grave injustice and unfortunate precedent." Also in January, UN officials expressed "grave concerns" [JURIST report] on continued post-election violence in the Ivory Coast, cautioning that genocide could be imminent. In December, UN officials urged all parties to the disputed presidential election in the Ivory Coast to honor the country's commitment to prevent genocide [JURIST report], crimes against humanity and ethnic cleansing under the 2005 World Summit Outcome Document [text, PDF]. Also in December, the Economic Community of West African States (ECOWAS) [official website] urged Gbagbo to step down, threatening the use of force [JURIST report] if he attempts to maintain power. Gbagbo has refused to cede power to president-elect Ouattara [BBC profiles], who won the November 28 runoff election according to international observers.




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Wisconsin judge temporarily blocks union bargaining law
Drew Singer on March 18, 2011 2:37 PM ET

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[JURIST] A judge for Wisconsin's Dane County Circuit Court [official website] on Friday issued a temporary restraining order blocking the state's new Budget Repair Bill [Senate Bill 11 text, PDF]. Judge Maryann Sumi's order blocked the law from being published [NYT report], one of the procedural steps towards enacting it. The lawsuit [complaint, PDF] over the bill alleges that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice—or two hours if there is an emergency—before a public meeting. District Attorney Ismael Ozanne [official website] filed the complaint [JURIST report] on Tuesday in an attempt to invalidate the law, which strips public unions of the vast majority of their collective bargaining right. A full hearing of the suit will occur on March 29, but nothing in the restraining order blocks Republicans from passing the bill again with the appropriate notice.

Ozanne is the second public official to mount a legal challenge to the bill, following a similar suit filed last week [complaint, PDF] by Dane County Executive Kathleen Falk [official profile]. Falk's suit came immediately after Wisconsin Governor Scott Walker [official website] signed the bill into law last week [JURIST report]. The provisions limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since February 15, when SB 11 was introduced to address the state's $3.6 billion deficit. Earlier this month, a Wisconsin judge ruled that the state capitol building must remain open [JURIST report] to the public during business hours, despite an attempt to close the building to protesters who had occupied it as part of a protest against the proposed restrictions on collective bargaining. The Wisconsin State Employees Union Council 24 [advocacy website] filed the petition earlier in the day in reaction to Walker ordering the capitol building closed and removing protesters.




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Rights group criticizes US immigrant detention system
Aman Kakar on March 18, 2011 2:24 PM ET

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[JURIST] US immigration enforcement agencies are overly reliant on a flawed detention system, according to a report [PDF] released Thursday by the Inter-American Commission on Human Rights (IACH) [official website]. The IACH investigated six immigrant detention centers based throughout Arizona and Texas. The report expresses concern over increased use of detention by the US government, citing a doubling in detention of non-citizens by the US Immigration and Customs Enforcement (ICE). It criticizes the US government for viewing detention as a necessity and not as an exception in its enforcement. IACH also found the average 30 day detentions troubling, arguing that it is likely to increase as backlogs of immigration cases increase. The report also criticizes the lack of a genuine civil detention system and use of disproportionately restrictive penal and punitive measures during the detention. IACH also disapproved of contractors handling the management and personal care of immigration detainees and the lack of oversight from the ICE over the private contractors. The lack of representation for the immigrant detainees was particularly troubling for the IACH:
The IACHR observes the significant disparity in access to legal representation for detained immigrants. According to government statistics, in FY2008 approximately 40% of non-detained immigrants were represented in their immigration proceedings, whereas just 16% of detained immigrants were represented by counsel. The lack of legal counsel, the Inter-American Commission observes, has a profound impact on the chances of relief. The Constitution Project reports that just 3% of detained, unrepresented asylum seekers were granted relief.
IACHR identified the lack of access to pro-bono representation in the rural immigration detention locations, lack of interest from private attorneys and difficulty in gathering evidence needed for legal proceedings as factors that contributed to the lack of legal representation for immigrant detainees. The report advocates the reduction of the use of expedited removal, earlier access to counsel and prohibitions against moving detainees to where it would be easier obtain orders of removal.

Absent comprehensive reform at the federal level, illegal immigration continues to be a concern for local governments as well. On Wednesday, the Oklahoma State Senate approved a bill [JURIST report] similar to the controversial Arizona immigration law. Also this week, Utah Governor Gary Herbert [official website] signed into law [press release] a package of bills [JURIST report] aimed at both reforming the state's immigration laws and challenging the federal government to take action for reform nationally. One of the four bills, H.B. 497 [materials], is an enforcement law similar to the controversial Arizona immigration law, and requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. The US Department of Justice [official website] in July filed suit [JURIST report] against Arizona Governor Jan Brewer [official website] 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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Libya officials could face prosecution for civilian attacks: ICC
LaToya Sawyer on March 18, 2011 1:28 PM ET

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[JURIST] International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] warned Libyan government officials on Friday that war crimes prosecution could result for any indiscriminate attacks [video] against civilians in Benghazi. Last week, the UN was called upon to impose a no-fly zone [JURIST report] over Libya in response to reports that Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] had been using aircraft attacks to combat civilian protesting. Prior to Thursday's UN vote authorizing the resolution, Gaddafi threatened an imminent attack on Benghazi [NYT report]. Moreno-Ocampo's warning follows an issuance of an ultimatum by Libyan government officials that all Benghazi citizens must leave the targeted areas which Libya plans to attack. According to Moreno-Ocampo, "the issuance of such a warning does not provide an excuse to attack civilians. ... The government can control rebellion but cannot attack civilians." Following Moreno-Ocampo's statement, the Libyan government declared a ceasefire to halt international intervention [AP report]. However, according to reports, attacks have reportedly not stopped, and Moreno-Ocampo maintains that there will be no impunity for attacks on civilians.

Earlier this month, the ICC launched a probe to investigate allegations of crimes against humanity [JURIST report] by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. Additionally, the UN appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi ordered forces to torture and abduct opponents. Gaddafi is accused of ordering hospital patients' executions, firing on crowds of protesters and using other extreme tactics against his opponents. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. The ICC has also said that itwill not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.




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Europe rights court authorizes display of crucifix in Italy state schools
Michael Haggerson on March 18, 2011 1:26 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment, PDF; press release] Friday that the display of the crucifix in public schools in Italy does not violate Article 9 or Article 2 of Protocol No. 1 of the European Convention on Human Rights [text, PDF]. Article 9 is a right to freedom of religion, while Article 2 of Protocol No. 1 guarantees the right to an education in conformity with personal religious convictions. The parties challenging the display of the crucifix had argued that the religious objects interfered with the right to freedom of thought and that the crucifixes indicated that the government had a preference for a particular religion. The Italian government had argued that the presence of crucifixes was justified based upon tradition and that "beyond its religious meaning, the crucifix symbolized the principles and values which formed the foundation of democracy and western civilization." The court emphasized that member states have a "responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs" in order to maintain religious tolerance and public order. The court ultimately ruled, however, that there was no evidence that the presence of crucifixes would negatively impact school children, and that the lack of evidence meant that no reasonable conclusions could be drawn as to the effect of the crucifixes on children whose convictions are still developing. If the ECHR found that the presence of the crucifix in public classrooms violated the Convention on Human Rights, the ruling would have applied to all 27 EU member states.

The court's ruling overturned a previous decision [JURIST report] in Lautsi v. Italy, which ordered the Italian government to remove crucifixes from state-run schools. Italian Prime Minister Silvio Berlusconi responded to the initial ban by stating that Italy was not bound [JURIST report] by the ECHR's decision and that he found the decision to be disrespectful [Corriere della Sera report, in Italian]. Berlusconi also indicated at that time that, even if the government's appeal of the decision failed, the crucifixes would not be removed. The Greek Orthodox church also condemned [JURIST report] the ECHR's 2009 decision, urging European citizens to unite in protest of the decision. The Church feared that the Greek arm of human rights group Helsinki Monitor [advocacy website] would succeed in using the ruling to challenge the presence of religious icons in public settings in Greece.




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Obama administration contests en banc review of health care law
Brian Jackson on March 18, 2011 11:02 AM ET

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[JURIST] The Obama administration on Thursday filed a brief [PDF] in the US Court of Appeals for the Eleventh Circuit [official website] contesting a request by plaintiff states to have the health care reform law [HR 3590 materials; JURIST news archive] appeal heard by an en banc court. The states had originally requested en banc review, along with an altered briefing schedule [SCOTUSblog report], on March 10. In its brief, the government asserted that initial en banc review is reserved for "extraordinary cases", where "panel review would be futile in the face of binding circuit precedent," and no such precedent exists in this area. The government also pointed to the fact that the US Court of Appeals for the District of Columbia Circuit has denied a petition [order, PDF] for an initial en banc hearing of an appeal on the health care law. The briefing schedule was also a target of the government's brief, as Department of Justice (DOJ) attorneys stated:
Nor is it apparent that the briefing schedule would provide adequate time for the Court to review the district court's opinions and the briefs submitted by the parties and their amici. Under the Court's order, briefing will conclude on May 25, which would give the full Court only two weeks before the June 6 en banc sitting to consider an appeal that, in plaintiffs' view, "is unprecedented in its scope, scale, and importance."
While the brief detailed the reasons why initial en banc review is unwarranted, in concluded by stating that the government is prepared to proceed no matter the court's decision.

Last week, the Eleventh Circuit granted [JURIST report] the Obama administration's motion for an expedited appeal, but it had not addressed the states' motion for the appeal to be heard en banc. Last month, Virginia Attorney General Kenneth Cuccinelli filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court [JURIST news archive] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit rules on the issue, but the Obama administration opposes the petition [JURIST report]. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] 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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Top DOD lawyer urges civilian trials for Guantanamo detainees
Andrea Bottorff on March 18, 2011 10:12 AM ET

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[JURIST] General Counsel for the US Department of Defense (DOD) [official website] on Thursday urged Congress to allow civilian trials [hearing video] of Guantanamo Bay [JURIST news archive] detainees, in addition to military commissions. At a hearing before the House Armed Services Committee [official website], General Counsel Jeh Johnson [official profile] called for Congress to explore all trial possibilities for the detainees, including both military panels and civilian trials permitted under Article 3 [text] of the US Constitution. Johnson's comments followed the introduction of extensive detainee legislation [ASC news release] last week that could prevent further civilian trials for Guantanamo prisoners. Armed Services Chairman Buck McKeon (R-CA) [official website] introduced the proposed Detainee Security Act of 2011 [text, PDF], which would not allow detainees who are under review for continued detention to have a lawyer, would permit ongoing detention without trial and would prohibit detainees from being transferred or tried within the US.

Last week, US President Barack Obama [official website] issued an executive order [text; fact sheet] allowing military commissions [JURIST news archive] for Guantanamo detainees to resume [JURIST report]. New charges in the military commission system had been suspended since shortly after Obama took office in 2009. The order also established a procedure for establishing a review process for detainees who have not been charged, convicted or designated for transfer. Last 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. The detainee, Awal Gul, who had been at the Guantanamo Bay detention center since October 2002 and was suspected of having aided the Taliban and al Qaeda in Afghanistan [DOD press release, PDF], died of an apparent heart attack after he had completed some aerobic exercises.




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Oklahoma Senate approves Arizona-style immigration bill
Carrie Schimizzi on March 18, 2011 8:32 AM ET

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[JURIST] The Oklahoma State Senate [official website] on Wednesday approved [press release] a bill similar to the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. Senate Bill 908 [materials, PDF], passed by a 29-15 majority vote, gives state and local authorities to enforce any federal regulation or law concerning immigration. The proposed bill delegates police officers the authority to question the citizenship status of any person lawfully stopped for a traffic violation and arrest them without a warrant if the officer has probable cause to believe the person is in the country illegally. The bill also authorizes police officers to seize any property, including vehicles and personal property, used to harbor or transport illegal immigrants into the US. Some Senate members had disagreed over the controversial bill, fearing it would be deemed unconstitutional [KOCO report]. Senator Ralph Shortey (R) [official profile] praised the approval:
Today's vote sends a message to the people of Oklahoma that we have listened to their concerns and acted accordingly. I authored this proposal because I care about the people of my district and have witnessed firsthand the manner in which illegal immigration can limit economic development, increase crime rates and tear families apart. Passage of this legislation is a strong step toward addressing the issue and a victory for Oklahoma.
The bill will now move to the Oklahoma House [official website] for a vote.

Oklahoma is one of several states that have developed legislation in the past year reflecting the controversial Arizona immigration law. This week, Utah Governor Gary Herbert [official website] signed into law [press release] a package of bills [JURIST report] aimed at both reforming the state's immigration laws and challenging the federal government to take action for reform nationally. One of the four bills, H.B. 497 [materials], is an enforcement law similar to the controversial Arizona immigration law, and requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. The US Department of Justice [official website] in July filed suit [JURIST report] against Arizona Governor Jan Brewer [official website] 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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Peru national first to be arrested under new UK genocide law
Jennie Ryan on March 17, 2011 1:46 PM ET

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[JURIST] A spokesperson for the UK's Metropolitan Police Service [official website] on Thursday confirmed the arrest of a 46-year-old Peruvian national on suspicion of crimes against humanity and torture. He is suspected of involvement with the Shining Path [backgrounder], a Maoist guerilla organization, believed to be responsible for the deaths of thousands in conflicts in Peru. The man, whose name has yet to be released, was arrested [Yorkshire Post report] on Tuesday and is being held while police conduct searches of several addresses in the area linked to him. The man is the first to be arrested under the Coroners and Justice Act 2009 [materials], which allows UK courts to hear cases of genocide, war crimes and crimes against humanity committed by nonresidents between 1991 and 2001.

The change in UK genocide law expanded the jurisdiction of the court to include non-residents who had been involved in crimes against humanity prior to 2001. The Coroners and Justice Act 2009 enlarged the International Criminal Court Act 2001 [text], which only covered the prosecution of non-residents for atrocities that occurred after 2001. The change came after proposals by the UK's official adviser on terrorism, Lord Carlile of Berriew [official profile], and Britain's Justice Secretary Jack Straw [official profile] to expand the power [JURIST report] of British authorities to prosecute non-resident individuals suspected of war crimes.




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US Congress introduces legislation to repeal Defense of Marriage Act
Dan Taglioli on March 17, 2011 1:26 PM ET

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[JURIST] Congressional Democrats on Wednesday introduced legislation [text] to repeal the Defense of Marriage Act (DOMA) [text], the 1996 federal law that defines marriage as a "a legal union between one man and one woman as husband and wife." Companion bills were introduced in both chambers of Congress in an effort to capitalize on growing public support for same-sex marriage. Representatives Jerry Nadler (D-NY), John Conyers (D-MI) and over 100 cosponsors are leading the effort in the House, and Senators Patrick Leahy (D-VT), Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY) and about twenty cosponsors are promoting the bill in the Senate [official sites]. Five states and the District of Columbia have legalized same-sex marriages. Currently DOMA allows other states to ignore those recognized same-sex marriages, and prevents same-sex couples from receiving federal benefits available to married couples. The proposed legislation would repeal DOMA and formally amend United States Code definition of marriage:
For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
Rep. Nadler first introduced the repeal legislation, cited as the Respect for Marriage Act, in the House in 2009, but the measure did not receive a vote in committee or on the floor. This is the first time such legislation has been brought in the Senate.

The Congressional action follows February's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA, which restricts the federal definition of marriage to heterosexual couples, in court cases challenging the provision. The announcement came just one month after 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]. Earlier this month House Speaker John Boehner (R-OH) [official website] announced that he is launching a legal advisory group to defend [JURIST report] DOMA, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution."




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EU Kosovo authorities arrest suspected war criminals
Julia Zebley on March 17, 2011 12:45 PM ET

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[JURIST] The European Union Rule of Law Mission in Kosovo (EULEX) [official website] on Wednesday arrested nine suspects [press release], all former members of the Kosovo Liberation Army (KLA), on suspicions of committing war crimes during the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. Included in the arrest was Fatmir Limaj, a former commander of the KLA and prominent political figure in Kosovo, although he was released the next day. The government [official website] released a statement [Koha Ditore report, in Albanian] in support of the KLA members:
[The] Kosovo Liberation Army and people of Kosovo have developed just war, pure, to respect international norms and standards.The Government of Kosovo considers that any attempt to smear the KLA fighters will fail this time. The Government of Kosovo is satisfied that these allegations will be proven as unfounded and distasteful, because the liberation struggle of the KLA was to defend the country and our people.
Thousands of students also protested the arrests [Kosova Press report, in Albanian] on Thursday, and several government officials made statements decrying the arrests as pandering to Serbia. The KLA was instrumental in beginning the Kosovo war for liberation, by campaigning against the Yugoslav military forces. It disbanded in 1999, with members joining other military organizations or entering political office.

EULEX has been investigating war crimes since December 2008, most recently arresting alleged war criminals [JURIST reports] in May 2010. A case came to trial [JURIST report] in March 2009, resulting in a guilty verdict against a Kosovo Albanian for charges of murder, attempted murder and grievous bodily harm. The trial of two Serbian defendants was derailed [JURIST report] that month by hundreds of Serbian protesters and postponed indefinitely. Recently, the Council of Europe and the UN Security Council [JURIST reports] have considered allegations of organ trafficking by the KLA during the war. Kosovo controversially seceded from Serbia [JURIST report] in February 2008, and its new constitution [text] went into effect [JURIST report] in June.




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Canada Supreme Court to review ban on Muslim veil during testimony
Alexandra Malatesta on March 17, 2011 12:14 PM ET

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[JURIST] The Supreme Court of Canada [official website] has agreed to review a lower court order requiring a Muslim woman to remove her niqab [BBC backgrounder] while testifying. The Court of Appeal for Ontario [official website] in October ruled [JURIST report] that a witness does not have to remove her veil unless the failure to do so will prevent the accused from receiving a fair trial, and should be determined on a case-by-case basis. The case was then remanded to the lower court. The trial began in 2007 after the woman told police that her uncle and cousin had repeatedly sexually assaulted her when she was between the ages of six and ten years old. The trial court required the victim to remove her veil when testifying against her uncle and cousin. The defendants argue that allowing the woman to wear a niqab on the stand obstructs their right to face their accuser. David Butt, the woman's lawyer, responded that an exception should be granted to ensure that victims of sexual assault, specifically Muslim women who practice religious veiling, feel welcomed by the judicial system [CBC Canada News, report].

The wearing of traditional religious clothing in court rooms and other public places has been highly contested in the United States [JURIST report] and around the world. In October, the French Constitutional Council [official website, in French] ruled [JURIST report] that a bill [materials, in French] making it illegal to wear the Islamic burqa [JURIST news archive], niqab or other full face veils in public, conforms with the Constitution. Earlier that month, a Dutch politician suggested that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith.




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Poland court rules 1981 martial law declaration unconstitutional
Daniel Makosky on March 17, 2011 12:06 PM ET

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[JURIST] Poland's Constitutional Tribunal [official website] on Wednesday ruled that the 1981 declaration of martial law [Polish government backgrounder] violated the country's then-governing constitution [text]. The decision facilitates the restitution process [Dziennik Gazeta report, in Polish] for those harmed while martial law remained in effect by eliminating the need for courts to rule on the declaration's constitutionality on a case-by-case basis. Thousands of restitution claims are expected from victims or their families, including those killed, imprisoned, terminated from their employment or otherwise harmed during the period.

The trial of former Polish leader General Wojciech Jaruzelski [JURIST news archive], charged with "organizing crimes of a military nature," deprivation of freedom through internment, and other offenses in connection with the martial law declaration, resumed [Polskie Radio report] last month after originally commencing [JURIST report] in 2008. Jaruzelski was previously tried for ordering troops to fire on striking ship workers [BBC report] in the 1970s, but that trial ended without a verdict. The prosecutions were part of a plan for "moral renewal" [WP report] pushed by then-president Lech Kaczynski and his brother, former prime minister Jaroslaw Kaczynski. About 100 people are said to have died as a result of the martial law declaration and the subsequent arrests of Solidarity leaders, including Lech Walesa [BBC profile], and some 10,000 people were held in internment camps.




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Wisconsin lawmakers accused of breaking open meetings law
Daniel Richey on March 17, 2011 10:46 AM ET

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[JURIST] Republicans in the Wisconsin state legislature broke several state laws when they passed last month's controversial budget bill, charges Dane County District Attorney Ismael Ozanne (D) [official website] in a complaint [PDF] filed Tuesday in a Wisconsin circuit court [official website]. Ozanne alleges the February 25 special session that enacted the Budget Repair Bill, or Senate Bill 11 [text, PDF], which strips public unions of the vast majority of their collective bargaining rights, was conducted in violation of Wisconsin's Open Meetings Law [Wis. Stat. § 19.81-19.98]. The law represents the codification of two provisions of the Wisconsin Constitution [text, PDF], which require that "[t]he right of the people to peacably assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged," [Article I § 4] and that "[t]he doors of each house shall be kept open except when the public welfare shall require secrecy." [Article IV, § 10]. The complaint also alleges that the meeting was held in violation of Joint Rule 3 of the Wisconsin Legislature [text], which sets minimum procedural standards for calling a roll call vote. According to the complaint:
No Joint Rule of the Wisconsin Legislature establishes a different procedure for providing public notice and public access to the meeting of the Joint Committee of Conference on January 2011 Special Assembly Bill 11 than is required by Wisconsin's Open Meetings Law.... The public notice for said meeting was insufficient as to reasonably likely apprise the public and the news media that the Joint Committee of Conference would consider, discuss, debate and act on a new version of of [the] Bill ... which had not been previously passed by the Senate[.]
Ozanne has asked the court to invalidate the law and forbid the secretary of state from publishing it. He also asks for a fine of $300 on each of the Republican legislators involved in the passage of the bill.

Oznne is the second public official to mount a legal challenge to the bill, following a suit filed by Dane County Executive Kathleen Falk (D) [official biography] filed a similar suit last week [MWJS report; complaint, PDF]. Falk's suit came immediately after Wisconsin Governor Scott Walker (R) [official website] signed the bill into law last week [JURIST report]. The provisions limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since February 15, when SB 11 was introduced to address the state's $3.6 billion deficit. Earlier this month, a Wisconsin judge ruled that the state capitol building must remain open [JURIST report] to the public during business hours, despite an attempt to close the building to protesters who had occupied it as part of a protest against the proposed restrictions on collective bargaining. The Wisconsin State Employees Union Council 24 (WSUE) [advocacy website] filed the petition earlier in the day in reaction to Walker ordering the capitol building closed and removing protesters.




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Bahrain opposition leaders arrested after violent crackdown on protesters
Sarah Paulsworth on March 17, 2011 9:19 AM ET

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[JURIST] Six opposition leaders were arrested in Bahrain on Thursday after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana on Wednesday. Among those arrested [NYT report] are dissident Hassan Mushaima and secular party leader Ebrahim Sharif. Six people were killed during the clashes on Wednesday and at least 1,000 people were injured [Al Jazeera report]. Protesters injured in the melee have been denied medical care, and healthcare practitioners were beat [BBC report] for trying to help the injured. UN High Commissioner for Human Rights Navi Pillay [official profile] released a statement [text] on Thursday in which she said:
My office has been receiving desperate calls and emails from numerous individuals in Bahrain, terrified about the armed forces' intentions. There are reports of arbitrary arrests, killings, beatings of protesters and of medical personnel, and of the takeover of hospitals and medical centers by various security forces. These reportedly include Bahraini police, defense forces and troops from the Gulf Cooperation Council's Peninsula Shield Force. This is shocking and illegal conduct. Police and armed forces must immediately leave healthcare facilities and cease their harassment and intimidation of health professionals.
Pillay called on the government to stop using force against protesters and to facilitate medical treatment for the injured.

On Tuesday, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency comes just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called Sunday on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. Last week, the member states of the GCC, which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region. 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."




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Obama administration supports Internet privacy legislation at Senate hearing
Ann Riley on March 17, 2011 8:15 AM ET

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[JURIST] The Obama administration on Wednesday backed Internet privacy legislation at a hearing [materials] before the US Senate Committee on Commerce, Science, and Transportation [official website]. The hearing followed reports released in December by the US Department of Commerce and the Federal Trade Commission (FTC) [reports, PDF] petitioning for stronger online privacy protections, while maintaining the innovation of the Internet. Assistant Secretary of Commerce for Communications and Information Lawrence Strickling [official profile] described [Commerce blog] how legislation would "establish a clearer set of rules for the road for businesses and consumers, while preserving the innovation and free flow of information that are hallmarks of the Internet." FTC Chairman Jon Leibowitz [official profile] explained how legislation might help to further the agency's efforts at establishing a "Do Not Track" system [press release], describing how consumers could opt out of sharing their private information just once for all Internet based companies. Commerce Committee Chairman Jay Rockefeller (D-WV) [official profile] expressed [press release] the importance of Congress stepping up to protect consumer information:
I appreciate that we live in a world in which online technology is rapidly evolving. I know some online companies have taken steps to address consumer privacy. And, I appreciate the need to proceed carefully when providing consumer protections that may disrupt the functionality of the Internet. But Congress can no longer sit on the sidelines. There is an online privacy war going on, and without help, consumers will lose. We must act to give Americans the basic online privacy protections they deserve.
Last year, US Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL) [official website] proposed draft legislation [JURIST report] aimed at protecting Internet privacy and regulating how websites track information about visitors and then use that information to target advertising. The bill would have required websites to inform visitors how their information will be collected and used and to allow consumers to opt out. Representative Jackie Speier (D-CA) [official website] introduced [press release] similar legislation [HR 654 text] last month. Senator John Kerry (D-MA) [official website] also plans on introducing a commercial privacy bill of rights [press release].

Support for legislation to protect online consumer rights comes amid mounting controversy surrounding Internet privacy issues. In November, the Federal Communications Commission (FCC) [official website] confirmed that it is investigating [JURIST report] Internet search company Google [corporate website; JURIST news archive] to determine if it violated communications laws when its Street View [JURIST news archive] vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. At the time, members of Congress indicated that the incident could factor into new Internet privacy legislation. Also in November, the European Commission [official website] recommended stronger Internet privacy laws [JURIST report] after a reviewing its 15 year-old privacy laws. Earlier that week, Google reached a settlement [text, PDF; JURIST report] in a class action lawsuit regarding privacy breaches relating to its Google Buzz social networking program. Under the settlement, Google will place $8.5 million dollars into a common fund to distribute to organizations that provide education regarding Internet privacy. In addition to investigations within the FCC and the FTC, Google has also recently come under investigation for privacy breaches relating to its Street View program in the UK, Canada, Australia, South Korea, and Spain [JURIST reports].




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Pakistan court acquits US government worker of murder charges
Daniel Makosky on March 16, 2011 3:21 PM ET

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[JURIST] A Pakistani court on Wednesday acquitted and released US consulate worker Raymond Davis, who was being held in connection with the shooting deaths of two men. Earlier in the day, the court formally indicted [Times of India report] Davis on two counts of murder after the Lahore High Court [official website] ruled Monday that, despite US assertions [JURIST report], he does not qualify for diplomatic immunity [Times of India report]. The charges were subsequently dismissed [AFP report] once a USD $2.35 million "blood money" settlement was reportedly reached with the victims' families, an arrangement that prompted some Pakistanis to suspect coercive influence by US officials. Davis maintains that he acted in self-defense after being confronted by two armed men on motorcycles, who were believed to have robbed a Pakistani citizen at gunpoint minutes earlier.

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




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Utah governor signs package of immigration reform bills
Dan Taglioli on March 16, 2011 12:16 PM ET

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[JURIST] Utah Governor Gary Herbert [official website] on Tuesday signed into law [press release] a package of bills aimed at both reforming the state's immigration laws and challenging the federal government to take action for reform nationally. One of the four bills, H.B. 497 [materials], is an enforcement law similar to the controversial Arizona immigration law [SB 1070 materials; JURIST news archive], and requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. The other bills are non-enforcement measures: H.B. 116 [materials] creates a guest worker program for illegal immigrants, allowing undocumented workers to live and work legally in the state, and the other two bills, H.B. 466 and H.B. 469 [materials], create programs that allow companies to recruit Mexican workers, and American citizens to sponsor foreign residents who want to work or study in the US. The guest worker pilot program requires a federal waiver and will not go into effect until 2013, a strategy aimed at forcing the federal government to engage the issue at a national level. Governor Herbert praised the bills and lauded state officials for their efforts:
There are those who will say these bills may not be perfect, but they are a step in the right direction and they are better than what we had. Thanks to the vision and determination of these local leaders, what we have begun today is a framework for a national conversation about immigration and a means to engage the federal government. Once again, Utah leads the nation in finding solutions and making tough choices.
Governor Herbert also referred to the summit he convened last summer that laid the foundation for the legislation, calling the process "open, transparent, and civil." As he signed the immigration bills into law the governor offered an explicit challenge to the federal government to engage in meaningful dialogue on the issue and bring about national reform.

Utah is one of several states that have developed legislation in the past year reflecting the controversial Arizona immigration law. The US Department of Justice [official website] in July filed suit [JURIST report] against Arizona Governor Jan Brewer [official website] 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. Additionally, in October a federal judge denied [JURIST report] motions to dismiss a class action lawsuit [JURIST report] challenging the law's constitutionality, and in February Governor Brewer announced [JURIST report] a counterclaim [summary, PDF] against the US government in its lawsuit challenging the law. A three-judge panel for the Ninth Circuit heard oral arguments [JURIST report] on the case in November, but have not yet reached a decision on the matter.




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Rights group urges Slovenia to protect Roma migrant communities
Sarah Posner on March 16, 2011 12:15 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday released a report [report, PDF; press release] documenting discrimination and human rights violations against Roma migrants [JURIST news archive] in Slovenia and urging the Slovenian government to protect Roma communities. The report reveals that Roma communities are being denied access to housing, water and sanitation. Much of the Roma population is living in overcrowded shacks without access to adequate health care services, schools, shops and employment. According to the report, the Slovenian government is not taking action to prevent discrimination against the Roma or ensure remedies for victims. AI alleges that Slovenia is violating its obligations under the International Convention on the Elimination of Racial Discrimination (ICERD), the International Convention on Economic, Social and Cultural Rights (ICESCR) and the Revised European Social Charter [texts]. AI contends that the Slovenian government has failed to provide basic human rights to the Roma, stating:
Under international human rights law, Slovenia is obliged to address discrimination, to end segregation, to ensure at least a minimum security of tenure to all persons who lack it, to provide adequate housing for all persons without discrimination, to prioritise the most disadvantaged groups in housing policies and programmes, and to guarantee access to at least the minimum essential levels of water and sanitation for all persons. Slovenia has failed to comply with these obligations and confer security of tenure to people living in informal settlements and to provide access to water and sanitation to all persons, including those living in informal settlements.
AI urges Slovenian authorities to address discrimination against Roma from private and public actors, implement programs to monitor discrimination, provide remedies for the victims and ensure that all Roma settlements have access to basic resources.

The Roma population has faced discrimination [JURIST comment] in various European countries. In November, a complaint [text, PDF] filed with the Committee of Ministers of the Council of Europe [official website] by the Open Society Justice Initiative, the European Roma Rights Centre and the Greek Helsinki Monitor [advocacy websites] alleged that the Czech Republic continued to discriminate [JURIST report] against Roma school children. The groups alleged that the Czech government failed to implement a November 2007 European Court of Human Rights (ECHR) [official website] decision [text; JURIST report], which determined that the Czech Republic indirectly discriminated against Roma children. In October, the League of Human Rights (LDH) [advocacy website, in French] accused French authorities of improperly collecting DNA samples [JURIST report] from Roma migrants. French police may collect samples of genetic material from indicted individuals, though the organization contended that police have subjected the Roma to such procedures without being either arrested or charged. In September, AI urged EU members to stop forcibly deporting Roma migrants to Kosovo [JURIST report]. AI believed that Roma, as well as other ethnic minority groups, could face persecution or violence upon their return.




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DOJ sues California prison system for ordering Sikh inmate to trim beard
Alexandra Malatesta on March 16, 2011 12:03 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday sued [press release] the California Department of Corrections and Rehabilitation (CDCR) [official website] for unfairly disciplining Sikh inmate Sukhjinder Basra for refusing to trim his beard. The suit also names the state of California and Governor Jerry Brown [official profile] in alleging a violation of the federal Religious Land Use and Institutionalized Persons Act (RLIUPA) [42 USC § 2000cc-1 text]. Basra, who is serving time for a drug offense, violated the prison's grooming policy [text, PDF] by maintaining a beard longer than one-half inch to abide by his Sikh beliefs [Sikh Coalition backgrounder]. The prison's disciplinary measures [AP report] for the violation included performing extra prison duties, being confined to his bunk for 10 days and losing 30 days of credit for good behavior. The American Civil Liberties Union of Southern California (ACLU) [advocacy website] filed suit [complaint, PDF] on behalf of Basra in February, alleging the state's prisons' regulations deprive Sikh inmates from practicing their First Amendment [text] rights. The ACLU's complaint also claims that when Basra filed for an exemption to the prison's grooming policy, the CDCR rejected his request, denying any charge of discrimination and saying:
For clarification, you are not being discriminated against, as you allude to in your letter. ... You are being treated the same as the other inmates in [California Men's Colony]. You may have a beard, but you must keep it trimmed to no more than one-half inch in length. There is no provision in the [California Code of Regulations], Title 15 for the Warden to exempt the grooming standards.
The DOJ's suit is part of an investigation into California's grooming policies that allegedly over-burden members of the Sikh faith who are required to wear kesh, or unshorn hair.

Members of the Sikh religion have also contested state prohibitions of ceremonial religious dress [JURIST news archives], including headscarves, turbans and daggers. In February 2010, a UK judge criticized Britain's ban on Sikhs wearing their ceremonial dagger [JURIST report] in public places. In 2007, the US Transportation Security Administration (TSA) revised security procedures relating to headwear, after Sikhs criticized [JURIST reports] the potential for religious profiling. In 2006, the Supreme Court of Canada overturned [JURIST report] a Quebec school board's ban on carrying Sikh ceremonial daggers at school, ruling that it infringed students' religious freedom under the Canadian Charter of Rights and Freedoms. In 2006, the French Conseil d'Etat held [JURIST report] that Sikhs have to remove their turbans to be photographed for driver's licenses as a matter of public security.




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Fifth Circuit gives government more time to decide on offshore drilling permits
Matt Glenn on March 16, 2011 9:42 AM ET

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[JURIST] A panel of judges for the US Court of Appeals for the Fifth Circuit [official website] stayed a ruling [order, PDF] Tuesday that would have forced the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) [official website] to approve or deny five applications for offshore drilling permits by March 19. The stay bars enforcement, pending appeal, of a February 17 injunction [order, PDF] by a judge from the US District Court for the Eastern District of Louisiana [official website] giving BOEMRE 30 days to approve or deny applications filed by British drilling company Ensco, Plc [corporate website]. Judge Martin Feldman ruled in February that BOEMRE's delay of over four months in reviewing the permits was unreasonable. The Fifth Circuit's order granted the government's request for a stay without explanation.

In late February, the BOEMRE approved an offshore drilling permit [press release] for the first time since the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. Earlier that month, Feldman found the US Department of Interior (DOI) [official website] in contempt for a drilling moratorium issued last July after Feldman enjoined enforcement of an earlier moratorium [JURIST reports]. Feldman's February 17 order reversed a January decision by Feldman refusing Ensco's request to put a deadline [JURIST reports] on when the BOEMRE must make its decision.




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Federal appeals court allows woman to sue over forced removal of headscarf
Julia Zebley on March 16, 2011 8:11 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] reinstated [opinion, PDF] a lawsuit on Tuesday, allowing a Muslim woman to sue several government parties for forcing her to remove her religious headscarf [JURIST news archive] while detained in a holding cell. Souhair Khatib argued that being forced to remove her hijab was a violation of her religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [text], which prohibits governments from imposing regulations upon inmates that engender religious discrimination. The US District Court for the Central District of California [official website] initially ruled [opinion, PDF] that a holding cell is not a "prison, jail or pretrial detention facility" for protection under the law. The US Court of Appeals for the Ninth Circuit upheld the ruling [JURIST report] in a 2-1 decision, but Chief Judge Alex Kozinski filed a brief order [text, PDF] stating he would take the matter to the full panel. The reinstatement opinion declared that this "improperly merge[d] two distinct inquiries: whether the facility is an 'institution,' and the government's burden as to accommodation."
The County's argument reduces to the claim that because the application of RLUIPA to the courthouse holding facility is impractical and inconvenient the facility must not fall within the Act's definition of "institution." But this approach conflates RLUIPA's coverage and accommodation prongs. Congress certainly had real-world consequences in mind when it enacted RLUIPA, and the text of the statute indicates that it did not intend to minimize the serious security and other management interests of institutions. It chose, however, to deal with accommodation issues as a second step in the analysis, not by categorically excluding facilities like the Santa Ana Courthouse holding facility from RLUIPA.
The court's decision was unanimous. However, they stated the opinion should not be read broadly, noting there are unique conditions to all detention facilities and courthouses, and this nature of violation should be decided case-by-case. Christina Abraham [personal website], Civil Rights Director, Council on American-Islamic Relations (CAIR) - Illinois [advocacy website], wrote on the case in Ninth Circuit's Khatib decision undermines free exercise of religion [JURIST op-ed].

The American Civil Liberties Union of Georgia (ACLUGA) [advocacy website] filed a lawsuit in December on behalf of a Muslim woman who was arrested for refusing to remove her hijab in court, and ordered to serve 10 days in jail for contempt[JURIST reports] in 2008. In May 2010, a judge in the US District Court for the Eastern District of Michigan [official website] dismissed [JURIST report] a lawsuit against a Michigan judge who ordered a Muslim woman to remove her headscarf in court. The suit [complaint, PDF] was filed in August by CAIR [advocacy website] on behalf of Raneen Albaghdady against Judge William Callahan of the Wayne County Circuit Court. Callahan has a policy against hats in his courtroom, and when he asked Albaghdady to remove her headscarf, or hijab, she did so without objection.




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UN urges Turkish government to respect freedom of expression
Andrea Bottorff on March 15, 2011 2:29 PM ET

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[JURIST] A spokesperson for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday urged Turkish officials to respect journalists' freedom of expression [UN News Centre report]. The international concern increased after the Turkish government arrested nine journalists earlier this month based on accusations that the journalists were members of the political dissent group Ergenekon [BBC backgrounder; JURIST news archive] and had conspired to overthrow the government. The OHCHR spokesperson called for transparency in the arrests:
If there are genuine reasons to suppose that any journalists have committed crimes outside the scope of their journalistic work, then those reasons should be transparent to the journalists themselves, to their defence lawyers and to the rest of us.
Otherwise, the spokesperson said, the arrests appear to be "politically motivated" and are in violation of the International Covenant on Civil and Political Rights (ICCPR). Thousands of activists gathered in Istanbul on Sunday, protesting the arrests [AFP report] and calling for more protection of freedom of speech.

Turkey continues to face controversy regarding media freedom. In November, a Turkish Magistrate Court in Ankara reinstated [JURIST report] the nearly three-year ban on YouTube [media website; JURIST news archive] only days after the ban had been lifted. The court ordered access to YouTube blocked after video of former opposition leader Deniz Baykal in a bedroom with a female aide surfaced on the site. In September, the European Court of Human Rights (ECHR) [official website] ruled [JURIST report] that Turkey failed to protect the life of well-known Turkish-Armenian writer and journalist Hrant Dink [BBC obituary; JURIST news archive] and failed to adequately investigate his murder and infringed on his right of freedom of expression. Dink, editor of the newspaper Agos [media website], was shot and killed [JURIST report] in Istanbul in January 2007. Prior to his death, Dink was tried and then put on retrial [JURIST report] for "insulting Turkishness" by writing about the killing of Armenians during the Ottoman Empire.




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UN rights chief urges independent probe into Ivory Coast violence
John Paul Putney on March 15, 2011 2:27 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] called for an independent investigation into post-election violence in the Ivory Coast [JURIST news archive] on Monday as part of a report [text, PDF] to the UN Human Rights Council (UNHRC) [official website]. The report indicated that the human rights situation was deteriorating rapidly in the wake of the refusal by incumbent president Laurent Gbagbo to leave office after his defeat by challenger Alassane Ouattara [BBC profiles] in November:
With the political stalemate now going into its third month, the human rights situation in Cote d'Ivoire is becoming more precarious. Almost 300 people have been confirmed killed since the beginning of the crisis, and there are continuing reports of abductions, illegal detention and attacks against civilians. More than 35,000 people have been forced to flee their homes and seek refuge elsewhere, including in neighbouring countries. There are reports of thousands of youths being forcibly recruited and armed, presumably in preparation for violent conflict. The propagation of hatred and violence through the media remains a serious concern.
The report details information surrounding allegations of attacks on political opponents and unarmed civilians as well as sexual violence. Although the report includes events up until January 31, the OHCHR also presented recent developments, including ongoing attacks on political demonstrators, lack of basic services such as electricity and water, and rampant political propaganda.

In January, UN Secretary General Ban Ki-moon [official website] rejected the proposed recount [JURIST report] of November's Ivory Coast presidential runoff election results as a "grave injustice and unfortunate precedent." Also in January, UN officials expressed "grave concerns" [JURIST report] on continued post-election violence in the Ivory Coast, cautioning that genocide could be imminent. In December, UN officials urged all parties to the disputed presidential election in the Ivory Coast to honor the country's commitment to prevent genocide [JURIST report], crimes against humanity and ethnic cleansing under the 2005 World Summit Outcome Document [text, PDF]. Also in December, the Economic Community of West African States (ECOWAS) [official website] urged Gbagbo to step down, threatening the use of force [JURIST report] if he attempts to maintain power. Gbagbo has refused to cede power to president-elect Ouattara, who won the November 28 runoff election according to international observers.




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Uzbekistan government closes local HRW office
Maureen Cosgrove on March 15, 2011 1:23 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] reported Tuesday that the Uzbekistan government has ordered the closure [press release] of the advocacy group's Uzbek office. HRW learned from the Uzbekistan Supreme Court [official website, in Russian] on March 10 that, after maintaining a presence in the country for 15 years, it would have to vacate its offices in Tashkent. In a prior correspondence, the Uzbek Justice Ministry [official website] claimed that HRW ignored Uzbek legislation and lacked experience in the region. Uzbek authorities have provided no additional grounds for the order to vacate. According to HRW, the Uzbek government has obstructed its attempts to work in the country by denying or delaying visas and accreditation to HRW representatives and threatening criminal charges against one staff member. Several human rights activists and independent journalists are currently being detained in Uzbek prisons [Telegraph report], which have been criticized for allegedly subjecting prisoners to torture and dismal conditions. The executive director of HRW, Kenneth Roth [HRW profile], criticized the Uzbek government for its decision:
With the expulsion of Human Rights Watch, the Uzbek government sends a clear message that it isn't willing to tolerate critical scrutiny of its human rights record. ... The Uzbek government's persistent refusal to allow independent rights groups to carry out our work exacerbates the already dire human rights situation in the country, allowing severe abuses to go unreported, and further isolating the country's courageous and beleaguered human rights community.
This is the first time HRW has been forced out of a country in the group's 33-year history.

Uzbekistan has been criticized regularly for its poor human rights record. In April, UN Secretary-General Ban Ki-moon [official website] gave a speech [text], calling on Uzbekistan to deliver on promises as a signatory to various international treaties banning torture and civil rights violations in order to improve its human rights record. The rapidly growing Central Asian nation has long faced accusations from the West of rampant political oppression and a litany of human rights abuses, including the use of torture on its prisoners [HRW report]. The UN Human Rights Committee [official website] in March demanded [JURIST report] that Uzbekistan conduct an independent investigation of May 2005 clashes [BBC backgrounder; JURIST news archive] between protesters, soldiers and police in the city of Andijan that rights groups estimate left as many as 500 people dead [JURIST report]. The committee urged [report, DOC] Uzbekistan to comply with previous recommendations and supply the UN with information on Uzbek policies regarding police use of firearms on civilians. The report was the first to be issued [Reuters report] on Uzbekistan by the Committee since the Andijan clashes, which were sparked when thousands of protesters gathered [JURIST report] after rebels stormed a prison and freed a group of businessmen on trial for alleged Islamic extremism. In October 2009, the European Union (EU) announced that it would lift the last of the sanctions [JURIST report] it imposed on the country in November 2005 for its refusal to investigate the Andijan incident.




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Iraq to close controversial detention center over abuse claims
Sarah Posner on March 15, 2011 1:17 PM ET

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[JURIST] Iraq's Justice Ministry announced Monday that it will close a Green Zone detention center because of alleged human rights violations. Justice spokesperson Haidar al-Saad said this decision was made after last month's investigation [AP report] into the prison's living conditions. The prison population in the detention facility known as "Camp Honor" will be transferred to various other Iraqi prisons. Recently, human rights groups, including Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites], have responded to reports of detainee torture in Iraq, pressing for the Iraqi government to close detention centers that commit human rights abuses.

Last month, AI reported [text, PDF] that the Iraqi government is operating secret prisons [JURIST report], and suspects held in Iraqi custody have been systematically tortured since before the 2003 US invasion. 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. 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.




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Proposition 8 supporters argue for standing to appeal
Ashley Hileman on March 15, 2011 12:40 PM ET

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[JURIST] Proponents of Proposition 8 [text; JURIST news archive], California's same-sex marriage ban, on Monday urged the Supreme Court of California [official website] to allow them to defend the measure [brief, PDF] when state officials refuse to do so. Last month, the court announced that it would decide the critical procedural issue [JURIST report] to determine if the pending federal appeal of the invalidation of Proposition 8 can continue. The US Court of Appeals for the Ninth Circuit [official website] in January asked [JURIST report] the California Supreme Court to weigh in before proceeding with the appeal of the August ruling [JURIST report] by the US District Court for the Northern District of California [official website]. The uncertainty surrounding the proponents' standing is enhanced by the California Constitution's silence on the issue. In their argument for standing, the proponents emphasize the amount of work they have done to enact, support and defend the proposition up until this point, contending that this creates a "personal, particularized interest in the validity of their initiative entitling them to defend the initiative as real parties in interest if it is challenged in court." Moreover, they argue their entitlement is also derived from state law:
It is well settled under California law that official proponents, unlike mere political, ideological, or philosophical supporters of initiatives, may intervene to defend the initiatives they have sponsored if they are challenged in court. Indeed, this Court's precedent and established principles of California constitutional law make clear that allowing official proponents to intervene to vindicate the People's interest in successful initiatives when public officials will not do so is necessary to preserve the People's initiative power, a power that must be jealously defended by the courts.
California state officials have consistently declined to defend the initiative, and, in September, a California appeals court held [JURIST report] that they are not required to do so. If the California Supreme Court rules that state law does not allow the proponents take up the defense, the court of appeals will likely dismiss the case.

Earlier this month, California Attorney General Kamala Harris [official website] requested [JURIST report] that the US Court of Appeals for the Ninth Circuit lift the stay order prohibiting gay couples from marrying while the appeal is pending. Harris argued that the appeal is unlikely to succeed in light of the aforementioned jurisdictional concerns and the recent US Department of Justice (DOJ) decision to stop defending the constitutionality [JURIST report] of portions of the Defense of Marriage Act (DOMA) [text; JURIST news archive] on the grounds that laws concerning sexual orientation should be subject to a higher standard of review. Harris also questioned the rationality of continuing to enforce the stay, noting that the measure's supporters would not be subjected to harm if the order was lifted, whereas same-sex couples seeking to marry may face violations of their constitutional rights so long as the stay remains effective. A three-judge panel for the Ninth Circuit issued the stay [JURIST report] last August.




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Bahrain king declares 3-month state of emergency amid widespread protests
Zach Zagger on March 15, 2011 11:46 AM ET

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[JURIST] Bahraini King Hamad bin Isa Al Khalifa [official website] declared a three-month state of emergency [decree text, in Arabic] Tuesday in response to growing unrest in the island nation. The announcement of the martial law style system was made in state-run media and gives the military commander "authority to take measures and procedures necessary for maintaining the integrity of the homeland." More than 10,000 protesters stormed the Saudi Arabian embassy [NYT report] in Manama, the nation's capital, denouncing the monarchy. Foreign troops from Saudi Arabia and other surrounding nations have also moved into the country as a sign of the growing social and political tension in the Middle East and North Africa [BBC backgrounder]. Iran issued a statement saying the influx of foreign troops is unacceptable, but Bahrain's government has defended the move [AP report] as shield force reflecting a common regional destiny.

The state of emergency comes just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called Sunday on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. Last week, the member states of the Gulf Cooperation Council (GCC) [official website], which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region. 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."




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Obama administration urges Supreme Court to reject expedited health care review
Matt Glenn on March 15, 2011 9:21 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed a brief [text, PDF] with the Supreme Court [official website] Monday urging the court not to take a case challenging the constitutionality of the 2010 health care reform law [HR 3590 text; JURIST news archive] until a federal appeals court reviews the case. The DOJ argues that the case is ineligible for early review under Supreme Court Rule 11 [text, PDF] which prevents the court from taking a case pending before a circuit court of appeals absent "a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." The DOJ filed the brief in response to a February petition for a writ of certiorari [JURIST report] filed by Virginia Attorney General Ken Cuccinelli [official website] seeking to send the case, which declared the Patient Protection and Affordable Care Act (PPACA) unconstitutional [opinion, PDF; JURIST report], directly to the Supreme Court. Despite the case's public importance, those challenging the law seek only to have the individual mandate, which takes effect in 2014, declared unconstitutional, and, argues the DOJ, "[t]here will be ample time before 2014 for this Court to decide whether to grant review in the normal course and, if it does so, to issue a decision." The brief notes that three circuit courts have already agreed to hear expedited challenges and that, should the circuit courts be bypassed, there is no guarantee the Supreme Court will hear the case any sooner since the court will not have time to hear the case until next term at the earliest. The DOJ seeks to distinguish this case from other cases the court had heard early, claiming that, unlike the others, allowing this to go through the normal appeals process does not threaten to cause irreparable harm. The US Court of Appeals for the Fourth Circuit [official website] is scheduled to hear the case [Commonwealth v. Sebelius materials] in May.

Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] agreed to expedite its review [JURIST report] of a case challenging the PPACA but did not decide whether it will hear the case en banc. The DOJ filed a brief [JURIST report] with the Fourth Circuit last month urging the court to overturn the district court decision striking down the individual mandate, arguing that the Constitution's Commerce Clause and taxing power gave Congress the ability to pass the mandate. Cuccinelli announced his intention to appeal directly to the Supreme Court [JURIST report] earlier in February, citing the exceptionally far-reaching policy implications of the PPACA. There are currently 28 cases challenging the constitutionality of the PPACA. Federal courts in Washington, DC, Virginia and Michigan have upheld the law, while a federal court in Florida [JURIST reports] has also ruled the the individual mandate in unconstitutional, striking down the law in its entirety.




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Guatemalans file class action suit over US medical experiments
Aman Kakar on March 15, 2011 8:17 AM ET

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[JURIST] Seven Guatemalans filed a class action lawsuit [complaint, PDF] on Monday with the US District Court for the District of Columbia alleging that they had been the subject of non-consensual human medical experimentation by the US Public Health Service (PHS) [official websites]. The suit was brought on behalf of all individuals who were subjected to experimentation in Guatemala or were infected to be used as vehicles to infect test subjects for the venereal disease experiments. The complaint alleges that the PHS conducted the human medical experiments in Guatemala to test whether penicillin could also be used as a prophylaxis immediately following exposure to the syphilis bacteria. The plaintiffs seek to establish similarities between their case and the "Tuskegee Study of Untreated Syphilis in the Negro Male" in the complaint. The complaint further alleges:
Once the PHS learned what it wished from each Guatemalan subject's induced exposure, it may have provided penicillin to presumably cure the infection. However, the PHS provided little follow-up to ensure that the subjects were actually cured of their infection. How long the study continued and how long treatment, if any, was provided to those affected is not clear.
The plaintiffs seek relief under the Alien Tort Statute [28 USC § 1350], the Fifth Amendment and the Eighth Amendment [materials]. The complaint asks the court to declare that their human rights were violated, award plaintiffs compensatory and punitive damages, and permanently enjoin the defendants from further engaging in human rights abuses against plaintiffs and the people of Guatemala.

Evidence of the PHS program [report] was discovered by Professor Susan Reverby [academic profile]. US President Barack Obama [official website] apologized [BBC report] to Guatemalan President Alvaro Colom for the testing. Reverby's study shows that the PHS infected more than 700 people in Guatemala with syphilis and gonorrhea. The patients were prisoners and people suffering from mental health problems and were unaware they were being tested.




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Federal court sentences convicted Somali pirates to life
Aman Kakar on March 15, 2011 7:12 AM ET

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[JURIST] The US District Court for the Eastern District of Virginia [official website] sentenced five Somali pirates to life sentences on Monday for attacking the USS Nicholas [official website]. Maritime piracy [JURIST archive] carries a mandatory sentence of life in prison [AFP report]. The men received an additional 80 years each for firearms and other piracy-related charges. US Attorney for the Eastern District of Virginia [official website] Neil MacBride expressed approval [press release] of the tough sentencing:
Today's sentences should send a clear message to those who attempt to engage in piracy: Armed attacks on U.S.-flagged vessels carry severe consequences in U.S. courts. Modern-day pirates not only threaten human lives but also disrupt international commerce by extorting hundreds of millions of dollars in ransom payments. It is believed that between 650 to 800 people are held hostage by Somali pirates and that the global cost of piracy is as high as $12 billion annually.
Last week, US District Judge Mark Davis rejected an appeal by the men to overturn their convictions [AP report]. The defense had argued that the men did not board or rob the frigate and cited a Congressional Research Service [official website] report that suggested that the 1819 definition of privacy may be outdated. Davis rejected this argument, citing that the report did not contain any original substantive legal analysis.

The five men were convicted on charges of piracy [JURIST report] in November, the first such conviction in the US in nearly 200 years. The men were found guilty on charges of piracy, attacking to plunder a maritime vessel and assault with a dangerous weapon for their roles in an April attack on the USS Nicholas, which was deployed to combat piracy in waters off the eastern coast of Africa. Last week, the US District Court for the Eastern District of Virginia indicted 14 suspects [JURIST report] for overtaking a yacht containing four Americans. The case involves the first US citizen to die in recent wave of international piracy. In January, the UN Secretary-General's special adviser on maritime piracy Jack Lang [official profile] proposed an international piracy court [JURIST report]. Due to the lack of such a court, several nations have been conducting piracy trials. A German court began the trial [JURIST report] of 10 suspected Somali pirates in that country's first piracy trial in 400 years in November. A Yemeni court sentenced [JURIST report] a group of 10 Somali pirates to five years in prison. Prior to these trials, Kenya was conducting the bulwark of piracy trials. However, the high court of Mombasa ruled that Kenya does not have jurisdiction [JURIST report] outside of its national waters, releasing nine suspected Somali pirates. Other nations that have conducted such trials include the Netherlands, Seychelles, Mauritius, Somalia, and Spain [JURIST reports].




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Obama calls for gun law reforms to minimize violence
Jennie Ryan on March 14, 2011 3:26 PM ET

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[JURIST] US President Barack Obama [official website] called Sunday for greater enforcement of gun laws [op-ed] in the wake of the January shootings in Arizona [JURIST report]. In an opinion piece published by the Arizona Daily Star, Obama called for the implementation of "sound and effective steps" aimed at minimizing gun violence. He outlined three steps designed to enhance the effectiveness of the National Instant Criminal Background Check System (NICS) [FBI backgrounder], a database that provides information to gun sellers about potential buyers' eligibility to purchase firearms. Obama called for proper implementation of NICS and an incentive system to reward the states that provide the best information to the database. He also called for the system to be made "faster and nimbler ... provid[ing] an instant, accurate, comprehensive and consistent system for background checks." Addressing the often divisive nature of gun rights discussions in the US, Obama said that he has faith that Americans on both sides of the debate can recognize that "[m]ost gun-control advocates know that most gun owners are responsible citizens [and m]ost gun owners know that the word 'commonsense' isn't a code word for 'confiscation.' And none of us should be willing to remain passive in the face of violence or resigned to watching helplessly as another rampage unfolds on television."

Following the Arizona shooting, lawmakers have largely remained silent [AP report] on issues of firearms reform. This marks the first time Obama has directly addressed reform since the shooting, during which six people were killed and 13 were wounded, including US Congresswoman Gabrielle Giffords (D-AZ) [official website]. Earlier this month, federal prosecutors filed a 49-count indictment [text, PDF; JURIST report] against the suspected gunman, Jared Lee Loughner. The new indictment carries more severe charges than the original indictment [text, PDF; JURIST report] filed in January, accounting for all victims of the attack and carrying more serious penalties. Prosecutors first filed charges against Loughner [JURIST report] in January. Loughner has pleaded not guilty.




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ICC prosecutor warns Kenya suspects will be arrested if court rules not followed
LaToya Sawyer on March 14, 2011 2:17 PM ET

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[JURIST] Chief Prosecutor for the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] on Monday warned the six Kenyans suspected of inciting the 2007-2008 post-election violence [JURIST news archive] that arrests would ensue if they did not comply with the court's conditions. The warning follows a summons [JURIST report] issued by the ICC last week for the suspects to appear before the court on April 7 for an initial hearing. All six are believed to have fomented violence, rape and destruction of property during the 30 days of violence after the election. In December, Moreno-Ocampo identified the six suspects, which include current Deputy Prime Minister Uhuru Muigai Kenyatta and several ministry heads. Due to concerns over witness interference, the court granted the requests for conditions that prohibit the suspects from threatening the witnesses or influencing any witness through corrupt measures. The ICC judges, however, rejected the prosecutor's request that would prohibit the suspects from having contact with one another. Moreno-Ocampo still suspects that abuse of governmental power could negatively affect the case and intends to further investigate several of the ministry heads' involvement with the Kenyan police and the witness protection program.

The Kenyan government has announced that they will challenge [JURIST report] the admissibility of cases [press release] relating to the post-election violence as well as the jurisdiction of the court. In December, the Kenyan Parliament [official website] approved a motion to withdraw [JURIST report] the country from the ICC. In November, the Kenyan National Commission on Human Rights, which implicated former Cabinet minster William Ruto of interfering with the ICC investigation, denied accusations that it had bribed witnesses [JURIST report]. Moreno-Campo had also said that the court will not use testimony [JURIST report] from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. In September, Kenyan businessman Joseph Gathungu filed a lawsuit challenging the constitutionality [JURIST report] of the ICC investigation into the post-election violence.




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Ex-police officer indicted for role in Srebrenica massacre
Erin Bock on March 14, 2011 2:15 PM ET

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[JURIST] The Court of Bosnia and Herzegovina [official website] on Thursday confirmed the indictment [press release, in Croatian] of a former police officer for his role in the 1995 Srebrenica massacre [JURIST news archive]. Bozidar Kuvelja was ordered into custody [press release, in Croatian] in January and has been charged with genocide. According to the indictment, Kuvelja was involved in a search in July 1995 to find Bosnian Muslims in the village of Potocari. Kuvjela and members of his police company allegedly took the individuals to a warehouse known as "the White House" and physically abused them. Kuvjela and others then killed more than a thousand men the next day and coerced survivors to exit the building with the promise of medical assistance. The men were executed when they exited the building, and Kuvjela allegedly took part in "verifying" whether each man was still alive and shot those who had survived. No hearing date has been scheduled.

Last month, French authorities arrested Milorad Momic [JURIST report] under an international arrest warrant for his suspected involvement in the massacre. Prosecutors believe that Momic is part of a Scorpion group that videotaped the murder of Bosnia Muslims near Srebrenica. Momic may be extradited to Serbia to face trial for crimes against humanity. In November, Dragan Crnogorac was arrested in Bosnia and Herzegovina [JURIST report] on suspicion of having committed genocide. Crnogorac was also a police officer who is alleged to have shot Bosnian Muslim men and boys.




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France court awards Bosnia civil war victims damages for injuries
Ann Riley on March 14, 2011 2:04 PM ET

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[JURIST] A French court on Monday awarded a Bosnian family 200,000 euros (USD $280,000) for wartime abuses committed by former Bosnian Serb leaders Radovan Karadzic and Biljana Plavsic [JURIST news archives]. In an unprecedented civil decision, the Tribunal de Grande Instance of Paris [official website, in French] ordered Karadzic and Plavsic to compensate [AFP report, in French] Adil and Zuhra Kovac and their children for the humiliation they suffered and costs incurred from Adil's injuries sustained after being attacked during the 1992-1995 Bosnian war [JURIST news archive]. During the attack on their home, Adil was beaten, and the family was locked in their gasoline-drenched house. The Kovacs fled to the woods where their grandmother was murdered and Kovac's son was shot in the leg. After the incident, the Kovacs left Bosnia and acquired French citizenship, beginning their civil suit against Karadzic, Plavsic, Ratko Mladic and Momcilo Krajisnik [ICTY materials] for 1,000,000 euros six years ago. The court found sufficient evidence that Karadzic and Plavsic were personally responsible for the harm suffered by the Kovacs. The court requested additional evidence the determine Mladic's responsibility and declared itself incompetent to hear the case against Krajisnik. The decision must now be accepted by Bosnia and Herzegovina (BiH) and communicated to Karadzic and Plavsic.

The court's ruling may pave the way for victims of war crimes to obtain civil compensation from war criminals without a criminal trial. Karadzic faces 11 war crimes charges [indictment, PDF], including counts of genocide and murder, for alleged crimes he committed during the war in BiH. Karadzic is defending himself in the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] and has denied all of the charges against him. After multiple suspensions [JURIST reports], Karadzic's trial is expected to last through 2012. In 2009, Plavsic was released [JURIST report] from a Swedish prison after serving two-thirds of her sentence for war crimes committed between July 1991 and December 1992. Plavsic voluntarily surrendered herself to the ICTY in 2001 and was sentenced to 11 years in a Swedish prison. The ICTY agreed to grant her release [JURIST report], citing good behavior and "substantial evidence of rehabilitation." In 2010, the ICTY denied [decision, PDF; JURIST report] early release to Krajisnik who was sentenced [JURIST report] by the ICTY in 2006 to 27 years in a British prison for his role in the forced evacuation and displacement of several thousand Muslims and Croatians, including women and children. The ICTY reduced [JURIST report] Krajisnik's sentence to 20 years in 2009, transferring him to a UK prison to serve his time. Mladic, who faces charges of genocide and crimes against humanity, is currently at large [JURIST report] under the jurisdiction of the ICTY and has yet to be arrested.




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Syria military court jails activist accused of harming Iran relations
Ashley Hileman on March 14, 2011 12:49 PM ET

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[JURIST] A military court in Syria on Sunday sentenced a human rights activist accused of harming the country's relations with Iran to 18 months in prison. Ali Abdullah's sentence was based on allegations that he made critical comments against Iran [AP report], thereby harming Syria's relations with a foreign country. Abdullah, an outspoken member of the "Damascus Declaration" group, previously served a 30 month sentence for his criticisms of the Syrian government. He is not the only member of the "Damascus Declaration" group, known for its 2005 declaration calling for Syria's transition into a democratic nation and improved relations with neighboring Lebanon, to be punished. In January 2008, the Syrian government arrested [JURIST report] former parliamentarian and dissident Riyad Sayf, also a prominent member of the group, and, in 2007, a Syrian court sentenced writer and activist Michel Kilo [JURIST report], who was arrested after signing the group's Beirut-Damascus Declaration, to a prison term of three years for "speaking false news, weakening national feeling and inciting sectarian sentiments."

Over the past several years, Syria has increased its prosecution of political dissidents, drawing strong criticism from the international community. However, in an interview last month, Syrian President Bashar Al-Assad indicated he would push for political reforms including municipal elections and a new media law [CP report]. Soon after the interview, Internet users reported [JURIST report] that social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] were accessible without proxy servers or VPNs. This news made it appear as though Syria was lifting the ban imposed in 2007 as a concession to avoid popular upheaval [DP report] in the country. Because both Facebook and YouTube are routinely accessed by Syrians through international proxy servers, the concession may have limited impact. Other websites, such as Amazon and Wikipedia, remain blocked for the time being.




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Ex-Blackwater contractors convicted of manslaughter for Afghan shootings
Michael Haggerson on March 14, 2011 12:39 PM ET

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[JURIST] Two former Blackwater [JURIST news archive] contractors were convicted [press release] Friday of involuntary manslaughter in the US District Court for the Eastern District of Virginia [official website] for their role in the May 2009 shooting deaths of two Afghan nationals and the wounding of a third. Prosecutors alleged that the two men, Justin Cannon and Christopher Drotleff, left their military base without authorization and opened fire into the back of a civilian car after a traffic accident. The driver of the car and a civilian bystander were killed, and a passenger in the car was wounded. Cannon and Drotleff claim that they were defending themselves. They were originally indicted [indictment, PDF] in January 2010, but were charged under the Military Extraterritorial Jurisdiction Act [text, PDF] in a superseding indictment in August. Both men were acquitted of two counts of second-degree murder, assault resulting in serious bodily injury to the passenger and firearms offenses, but were convicted of involuntary manslaughter for the death of the driver. The men could be sentenced to a maximum of eight years in prison.

Cannon and Drostleff were initially tried in September, but the judge declared a mistrial [JURIST report] after the jury failed to reach a verdict. In April, a federal grand jury indicted five former Blackwater executives [JURIST report] on charges of weapons violations and lying to investigators. In February 2010, the Iraqi government ordered 250 former Blackwater employees to leave Iraq [JURIST report] in reaction to the dismissal of charges against former Blackwater employees accused in the deaths of 17 Iraqi civilians [JURIST report] in 2007. That month, the Department of Justice [official website] also opened an investigation [JURIST report] into whether Blackwater bribed the Iraqi government to be permitted to continue operating in Iraq following the 2007 shootings. Blackwater ceased operations in Baghdad [JURIST report] in May 2009 when its security contracts expired and were not renewed.




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Pakistan ex-president Musharraf says UK gave 'tacit approval' to use of torture
Zach Zagger on March 14, 2011 11:17 AM ET

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[JURIST] Former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] said that the UK gave "tacit approval" for torture of terror suspects, making the statements in a BBC documentary to be aired Monday. Musharraf's claims raise questions [BBC report] over UK's public stance discouraging other countries from torturing UK citizens on its behalf. Musharraf, who was president of Pakistan from 1999-2008 and a key US ally against al Qaeda, told the BBC that he was never informed of the UK's policy discouraging torture and defended the use of torture to fight al Qaeda. But Baroness Eliza Manningham-Buller, head of UK intelligence MI5 [official website] at the time, denied that it turned a blind-eye to torture by other countries. Claims that the UK allowed torture by other countries will be investigated by an independent commission set to begin work within the next two months. One of those believed to have been tortured with UK acquiescence was Binyam Mohamed [JURIST news archive], an Ethiopian native who had lived in the UK for eight years. He has claimed he was tortured by US officials at Guantanamo Bay [JURIST news archive] with the knowledge of UK security services. He has denied allegations against him and claims he made false admissions under the duress of torture.

Musharraf himself has come under scrutiny during his time as Pakistan president. Last month, an arrest warrant was issued [JURIST report] for Musharraf 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 for Bhutto when she was assassinated during a campaign rally in Pakistan in 2007. Last December, the UK government agreed to settlements [JURIST report] with 16 Guantanamo Bay detainees, including Mohamed, over allegations of torture. Details of the settlement agreement, which are legally bound to a confidentiality agreement, have not been released, although at least seven detainees are expected to receive compensation, with at least one receiving over one million pounds.




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Bahrain lawmakers call for state of emergency
Dwyer Arce on March 14, 2011 10:35 AM ET

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[JURIST] A group of 22 Bahraini lawmakers on Sunday called on King Hamad bin Isa Al Khalifa [official website] to declare a state of emergency in response to the latest protests against the monarchy. The lawmakers, members of the pro-government Independent Bloc, called on Khalifa to invoke martial law [BNA report] under articles 36 and 123 of the Bahraini Constitution [text, PDF] and deploy the Bahrain Defense Force to ensure national security and preserve state institutions. The call came after 5,000 protesters demanded an end to the monarch Sunday, following over a month of protests in Bahrain and throughout the Middle East and North Africa [BBC backgrounder]. On Monday, the member states of the Gulf Cooperation Council (GCC) [official website], which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions.

The Bahraini government's response to the protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region. 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], condemned violence by security forces in Libya, Bahrain and Yemen against anti-government demonstrators as illegal and excessively heavy-handed. 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].




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Nigeria legislature urged to create special electoral offenses commission
Sarah Paulsworth on March 14, 2011 9:28 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] and the Nigerian Bar Association [association website] called Sunday for Nigeria's National Assembly (NASS) [official website] to pass legislation creating a special electoral offenses commission [statement]. The commission would be tasked with investigating and prosecuting election-related abuses, including violence. Presidential elections are scheduled in Nigeria for April 9, while voting for National Assembly members will occur on April 2, and voting for state governors and state assembly representatives will occur on April 16. These will be the first elections since the death of former president Umaru Yar'Adua [BBC obituary] in May. Former vice president Goodluck Jonathan [BBC profile; JURIST news archive] assumed the presidency in February 2010 after parliament voted [JURIST report] for him to step in for the ailing Yar'Adua. Previous elections in Nigeria have been marred by violence and fraud [JURIST reports]. HRW Senior West Africa Researcher Corinne Dufka said:
The National Assembly should use the last few weeks before elections in April to end the history of electoral impunity and to create an independent Electoral Offences Commission. Failure to do so would risk further entrenching violence and corruption in the electoral process and continue the disenfranchisement of Nigerian citizens.
According to HRW, more than 50 people have been killed since November in politically-motivated and election-related violence.

In November, a judge for Nigeria's Federal High Court [official website] in Lagos ruled [JURIST report] that an amendment to the 1999 Nigerian Constitution [text] made by NASS cannot become operational law without the assent of the president. The amendment, known as the Constitution (First Amendment) Act 2010 [text, PDF] was passed in June. It repeals the Independent National Electoral Commission Act 2006 in order to re-instate the Nigerian Independent National Election Commission (INEC) [official website]. Also in June, the legislature passed [JURIST report] revisions to the constitution to clarify the exercise of executive authority in absence of the president. The constitutional revisions changed federal election law by removing a provision of the constitution that disallowed people who had been charged with fraud from standing for election and requiring candidates for federal office to have a degree beyond secondary education.




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Virginia Supreme Court to hear global warming subpoena case
Carrie Schimizzi on March 13, 2011 3:56 PM ET

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[JURIST] The Supreme Court of Virginia [official website] on Friday agreed to hear a case seeking to determine whether Virignia Attorney General Kenneth Cuccinelli [official profile] can subpoena records about a former professor at the University of Virginia [academic website]. Cuccinelli is requesting that the University turn over records about global warming researcher Dr. Michael Mann [official profile], now a professor at Penn State University, in an effort to investigate allegations that Mann received improper public funds for his global warming research. Last year, retired Albemarle County Circuit Court Judge Paul M. Peatross Jr. dismissed the request [opinion, PDF] citing Cuccinelli's failure to establish a reasonable belief that fraud had occurred, but held that the University could be a proper target of a fraud investigation. Cuccinelli has argued that Virginia's 2002 Fraud Against Taxpayers Act [materials], allows him to subpoena any records to help determine whether a civil fraud investigation is needed. The University hopes that court will set limits on what documents the Attorney General can demand in a civil investigation. Critics of the lawsuit have accused Cuccinelli, a global warming skeptic, of targeting Mann because of his research [Washington Post report]. The Virginia Supreme Court will hear the case later this spring.

Cuccinelli is also leading a multi-state effort to overturn the health care reform law [HR 3590 text; JURIST news archive]. In February, Cuccinelli filed [JURIST report] 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 on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. Cuccinelli based his request [press release; JURIST report] on 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.




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Cuba court sentences US contractor to 15 years in prison
Carrie Schimizzi on March 13, 2011 3:08 PM ET

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[JURIST] A court in Cuba on Saturday sentenced [Cubadebate report, in Spanish] US contractor Alan Gross to 15 years in prison for attempting to undermine the communist government of Cuba, according to a state-run website. US National Security spokesman Tommy Vietor immediately denounced the ruling [Washington Post report], calling the 15-year sentence an "injustice." Gross was arrested at the Havana Airport in 2009 for bringing computer equipment into Cuba. He was working as a member of a Development Alternatives Incorporated (DAI) [official website] program distributing computer and satellite phone equipment to Jewish residents in Cuba in an effort to give them Internet access. The sentence has increased the political strain between US and Cuban relations. Earlier this week Secretary of State Hilary Clinton [official profile] called for Gross's immediate release [AP report] and several US officials have stated that relations will not improve until Gross is released. DAI President and Chief Executive Officer James Boomgard urged the Cuban government to immediately release Gross [press release]:
We are profoundly disappointed by today's verdict and sentence. Alan Gross has been accused of doing nothing more than giving peaceful people access to the internet, and for this he has already been unjustly imprisoned for more than a year without the benefit of due process and in violation of international law. In light of the critical medical situation confronting Alan and his family, we urge the Cuban government to release him immediately on humanitarian grounds and quickly return him to his family.
The US hopes that Gross will soon be released on humanitarian grounds.

Until recently, the historically strained relations between the US and Cuba had shown signs of improvement. Earlier this year, President Obama [official profile] ordered [JURIST report] the Departments of State, Treasury, and Homeland Security [official websites] to take steps to ease restrictions on travel and remittances [press release] to Cuba. The new regulations, to be promulgated as modifications of the Cuban Assets Control [31 CFR § 515.101 et seq.] and Customs and Border Protection [19 CFR § 122.151 et seq.] regulations, will allow greater travel from the US to Cuba for religious and educational purposes, the transfer of up to $2000 per year to non-family members in Cuba so long as they are not senior government or Communist Party leaders, and will allow all US international airports to service charter flights between the two countries.




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Arab League calls for UN no-fly zone over Libya
Drew Singer on March 13, 2011 11:44 AM ET

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[JURIST] The League of Arab States [official website, in Arabic] on Saturday adopted a resolution calling for the United Nations Security Council [official website] to impose a no-fly zone over Libya. The Arab League declared that Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] has been using aircraft to combat civilian protesting, and it is the UN's responsibility [Ahram Online report] to stabilize the situation. In addition to requesting help from the UN, the resolution called on Arab and other international organizations to give humanitarian aid to the Libyan people and to help those trying to leave Libya. The resolution marks a shift in action for the Arab League, which has not responded to the Darfur genocide [JURIST news archive], among other high-profile international issues. The current UN response has been to suspend Libya from the Human Rights Council and to refer the situation [JURIST reports] to the International Criminal Court (ICC) [official website], which some scholars argue is hypocritical [JURIST op-ed] and shows the need for a more uniform application of international law.

The UN on Wednesday appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi has ordered forces to torture and abduct opponents. Although a probe was launched [JURIST report] earlier in March by the ICC, special rapporteur for torture Juan Mendez [UN profile] clarified [AP Report] that this probe is different because he and his fellow investigators are "independent experts" focusing on accusations that Gaddafi has ordered hospital patients' executions, fired on crowds of protesters and used other extreme tactics against his opponents. Protests in Libya began in February 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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Ninth Circuit overturns corruption conviction of Alaska lawmaker
Drew Singer on March 13, 2011 10:57 AM ET

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[JURIST] The US Ninth Circuit Court of Appeals [officials website] on Friday overturned [opinion, PDF] the corruption conviction of Vic Kohring, a former Republican member of the Alaska State Legislature [official website]. Kohring was caught on tape accepting cash from Bill Allen, an executive for Alaskan oil services and engineering company VECO Corp. [official website]. The court held that Kohring was unfairly denied access to evidence which would have helped his defense, including information which casts doubt on Allen's credibility:
[E]vidence of Allen's sexual misconduct with a minor would have shed light on the magnitude of Allen's incentive to cooperate with authorities and would have revealed that he had much more at stake than was already known to the jury. Beyond facing serious criminal charges, the newly-disclosed information shows Allen was very distressed at the prospect of his alleged sexual misconduct becoming public ... The newly-disclosed information also illustrates Allen's difficulty with remembering key facts, as well as Allen's and Smith's differing (and sometimes changing) recollections as to how much money they paid Kohring. Setting aside for a moment the question of the information's admissibility, the information is exculpatory and has impeachment value.
The court found that Kohring's Sixth Amendment [text] Confrontation Clause rights were violated, ruling that knowledge of Allen's sexual misconduct, as well as the newly-revealed information about Allen's memory regarding the financial exchange, would have helped Kohring challenge his credibility as a witness and allow the jury to more fairly evaluate how heavily it would weight his testimony.

Kohring was convicted [NYT report] in November 2007 and sentenced to 42 months in federal prison on extortion, bribery and conspiracy charges, based largely on FBI video surveillance [ADN video archive] evidence. But in 2009, the US Department of Justice (DOJ) [official website] asked the court to remand the case of two convicted Alaska lawmakers [press release], including Kohring, to district court and to release the prisoners on their own recognizance, admitting that DOJ prosecutors did not disclose all necessary information [JURIST report]. Several other Alaska lawmakers, as well as VECO's CEO Bill Allen and Vice President Rick Smith, prominent lawyer Jim Clark, and several high profile lobbyists, were also indicted, convicted, or pleaded guilty [ADN backgrounder] to corruption-related charges. In April 2009, the DOJ dropped the charges against former Alaska senator Ted Stevens [US Congress backgrounder] when similar errors were discovered [JURIST report].




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US legislators introduce bill ending bullying in federally funded schools
Maureen Cosgrove on March 12, 2011 12:09 PM ET

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[JURIST] US Representative Jared Polis (D-CO) and Senator Al Franken (D-MN) [official websites] on Thursday introduced legislation to protect lesbian, gay, bisexual and transgender (LGBT) students in federally funded public elementary and high schools from bullying. The Student Non-Discrimination Act (SNDA) [materials] was reintroduced in both the US House of Representatives and the Senate [official websites] prompted by the suicides resulting from anti-LGBT bullying of several students in the past year. The SNDA is modeled after Title IX [20 USC § 1681 et seq.] of the Education Amendments of 1972 and would establish a comprehensive federal prohibition of discrimination against LGBT students in public schools. The act would also prohibit schools from discriminating against students based on actual or perceived sexual orientation and gender identity, as well as prohibit schools from ignoring harassment. If enacted into law, violations of the SNDA would result in the loss of federal funding and provide a legal cause of action for victims who encounter discrimination in public schools. The American Civil Liberties Union (ACLU) [advocacy website] supports the legislation [letter, PDF] and decries the treatment of LGBT students in public schools:
The recent tragic deaths of young gay students from across the country underscore the fact that LGBT students are an especially vulnerable population in our nation's schools. Discrimination and harassment, even physical abuse, are often a part of these students' daily lives. ... The Student Non-Discrimination Act would have a profound impact in improving the lives of LGBT students by ensuring that discrimination and harassment of students on the basis of their sexual orientation or gender identity has no place in our country's public elementary and secondary schools.
The legislation was first introduced [HR 4530 materials] in the 111th Congress and currently has 99 co-sponsors in the House and 27 co-sponsors in the Senate.

President Barack Obama, lawmakers, students and parents convened on Thursday to discuss measures to combat bullying [press release]. Several state and federal legislators have introduced similar bills aimed at preventing bullying in public schools. Texas State Representative Garnet Coleman [official profile] introduced a bill [text, PDF] in February to ban anti-LGBT bullying, harassment and discrimination in public schools, as well as develop a suicide prevention program for middle, junior and high schools. The Massachusetts House of Representatives [official website] in March 2010 unanimously passed a bill [Boston Globe report] seeking to prevent bullying in schools and cyberspace.




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HRW urges end to torture, military trials of citizens in Egypt
Drew Singer on March 12, 2011 11:03 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday called on the Egyptian Supreme Council of the Armed Forces to end torture, investigate all cases of abuse [press release] against peaceful demonstrators and stop prosecuting civilians before military tribunals. HRW went on to describe witness accounts of Egyptian soldiers and others in civilian clothing attacking demonstrators, finding that "[t]he Supreme Military Council has been ignoring credible reports of arbitrary arrest and torture, ... [t]here can be no break from the abuses of the past while security forces — including military personnel — abuse people with impunity." Egypt's military council has been running the country since former Egyptian president Hosni Mubarak was forced out and has indicated a referendum will be held March 19 on constitutional reforms proposed [JURIST reports] by a committee of legal experts.

UN High Commissioner for Human Rights Navi Pillay [official website] has vociferously decried the use of violence against protesters [JURIST report] in recent months as protests have spread across the Middle East and North Africa [BBC backgrounder]. Earlier this month, Pillay condemned the response by Middle Eastern governments [JURIST report] to peaceful protests during her opening remarks at the UN Human Rights Council, urging the international community to take a strong stance against violence against protesters. In February, Pillay called on the Libyan government and Libyan leader Muammar Gaddafi [BBC profile] directly to stop the violence directed at protesters [JURIST report] within that nation. Also in February, Pillay said that the Libyan government's response to recent protests may amount to crimes against humanity [JURIST report].




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Maryland House fails to advance bill legalizing same-sex marriage
Maureen Cosgrove on March 12, 2011 10:48 AM ET

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[JURIST] The Maryland House of Delegates [official website] on Friday failed to approve a bill that would legalize same-sex marriage [JURIST news archive] in the state. The Maryland Senate [official website] voted 25-21 to approve [JURIST report] the Civil Marriage Protection Act [materials] last month and sent it to the lower house for a final vote. The failure to approve the bill makes it unlikely that the legislation will be approved before the next session, scheduled for 2012. The bill was withdrawn from the House [AP report] before the planned vote. The bill would have needed an affirmative vote from the House of Delegates and to be signed by the governor before becoming law. In addition to legalizing same-sex marriage, the bill would have allowed a religious institution to refuse services, accommodations or solemnization of a marriage that would violate constitutional rights to the free exercise of religion. Maryland Governor Martin O'Malley (D) [official website] opposed the decision not to pass the bill [press release]:
It is my firm belief that equality under the law means equality for everyone, and our laws should reflect that fundamental principle. Together, we've worked hard to protect and expand these rights for lesbian, gay, bisexual and transgendered citizens in our state. It was my hope to sign a marriage equality act consistent with these progressive reforms, while protecting religious freedom in our state.
Equality Maryland and the American Civil Liberties Union of Maryland [press releases] expressed disappointment at the bill's failure. The National Organization for Marriage [press release] praised the actions of the Maryland delegates.

In February 2010, Maryland Attorney General Douglas Gansler [official website] declared that the state would recognize same-sex marriages performed elsewhere [JURIST report]. Had the bill succeeded, Maryland would have become the seventh US jurisdiction to allow same-sex marriage. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and DC [JURIST reports].




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Eleventh Circuit agrees to expedited health care appeal
Drew Singer on March 12, 2011 10:32 AM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Friday granted [order, PDF] the Obama administration's motion for expedited review [text, PDF] over a Florida judge's ruling that the health care reform law [HR 3590 materials; JURIST news archive] is unconstitutional. The appeals court has yet not made a decision regarding the request that the initial review be heard en banc [SCOTUSblog report] before all 10 judges. Last Friday, Judge Roger Vinson stayed his ruling finding that the health care law was unconstitutional [JURIST reports] on the condition that an appeal would be filed within a week. The stay has allowed the administration to continue its implementation of the law in other states until after appellate review. Also on Friday, the 26 states that won before Vinson filed a notice of cross appeal [notice, PDF], appealing the "adverse disposition of claims."

The health care reform law is the subject of numerous legal challenges across the country. Last month, Virginia Attorney General Kenneth Cuccinelli [official website] filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court [JURIST news archive] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] 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 senators introduce bill restricting Guantanamo detainee transfers
Aman Kakar on March 11, 2011 5:30 PM ET

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[JURIST] US Senator John McCain (R-AZ) [official website], along with five cosponsors, introduced legislation Thursday that would prohibit funding for civilian trials of Guantanamo Bay [JURIST news archive] detainees and place restrictions on the transfer of detainees to foreign countries. The Military Detainee Procedures Improvement Act of 2011 [S 551 materials] would require "greater scrutiny on the security situation and ability of the host country to monitor a detainee" after transfer from Guantanamo. It also purports to "[r]eaffirm[] the President's authority to detain members of al-Qaeda, the Taliban, and affiliated terrorist groups based on the authority granted by Congress in the Authorization for Use of Military Force." The legislation would require members of terrorists groups affiliated with al Qaeda and the Taliban [CFR backgrounders] to be held in military custody when captured, would impose restrictions on transferring Guantanamo detainees to other countries and would require annual review of whether detainees can be released. The bill would also establish "the authority [for the President] to target and take lethal action against individuals" such as Anwar al-Awlaqi [NYT profile; JURIST news archive]. Awlaqi, a dual US-Yemeni citizen, has been approved for targeting killing by the Obama administration, an action that has been challenged based on Awlaqi's US citizenship [JURIST report]. Explaining the reasons for the bill [press release], McCain said:
This much-needed legislation would improve our current ad hoc military detention system for members of al-Qaeda and their affiliated terrorist groups, by enacting these policies and procedures firmly into law. Our legislation addresses difficult detainee issues, including long-term detention and carefully controlled transfers, emphasizing supervision, security, rehabilitation, and reintegration, so former detainees do not return to the battlefield - as approximately 25 percent of detainees released from Guantanamo have done.
The bill has been referred to the Senate Armed Services Committee [official website].

On Monday, President Barack Obama issued an executive order allowing the resumption of military commissions [JURIST report] for Guantanamo detainees. New charges in the military commission system had been suspended since shortly after Obama took office in 2009. Monday's order also establishes a procedure for establishing a review process for detainees who have not been charged, convicted or designated for transfer. In March 2010, UN Special Rapporteur on human rights and counter-terrorism Martin Scheinin [official website] urged the administration to abandon military commissions, calling the system "fatally flawed" and beyond hope of reform [JURIST report]. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Germany, Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].




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Wisconsin governor signs bill limiting state worker collective bargaining
Aman Kakar on March 11, 2011 4:43 PM ET

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[JURIST] Wisconsin Governor Scott Walker (R) [official website] on Friday signed legislation [text, PDF] limiting the collective bargaining rights of state employees, ending a three-week stalemate over the issue. The bill requires state employees to contribute a percentage of their salaries to their pension and health care premiums, and eliminates the ability of public employee union members to collectively negotiate anything but wage increases, which would be capped by the Consumer Price Index. The legislation is an amended version of SB 11 [text, PDF], a fiscal proposal by Walker which sparked intense nationwide legal and political controversy over provisions limiting the collective bargaining rights of state workers. The controversy deepened when the 14 Democrats of the state Senate left the state in order to deny the Republican majority the required quorum to pass a budget item. The amended legislation purports to have removed the budget elements [WP report] of SB 11, leaving only the provisions affecting collective bargaining rights and requiring employee payments into pension and health benefits, allowing the Senate to vote on it without the 14 Democrats present. The legislation was passed by the State Legislature [official website] on Thursday with a vote of 53-42 in the Assembly and 18-1 in the Senate. The procedure used to pass the bill has already faced a challenge [complaint, PDF] in state court under the Open Meeting Law [Wis. Stat. § 19.81-19.98], which requires that a 24-hour public notice be given for public meetings. Plaintiffs also alleged that the bill still contained fiscal provisions requiring the three-fifths quorum denied in the Democrats' absence. The judge denied the requested restraining order [Journal Sentinel report] and ordered further hearings on March 16.

The provisions limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since February 15, when SB 11 was introduced to address the state's $3.6 billion deficit. Earlier this month, a Wisconsin judge ruled that the state capitol building must remain open [JURIST report] to the public during business hours, despite an attempt to close the building to protesters who had occupied it as part of a protest against the proposed restrictions on collective bargaining. The Wisconsin State Employees Union Council 24 (WSUE) [advocacy website] filed the petition earlier in the day in reaction to Walker ordering the capitol building closed and removing protesters.




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War crimes trial of ex-Liberia president Taylor concludes
Zach Zagger on March 11, 2011 12:10 PM ET

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[JURIST] The war crimes trial of former Liberian president Charles Taylor [BBC profile; JURIST news archive] concluded Friday leaving judges in the Special Court for Sierra Leone (SCSL) [official website] to deliberate on the verdict. The prosecution gave its closing arguments [BBC report] where it said Taylor was an intelligent many who had fooled many people and relied on fooling the judges in this case. In its closing arguments, the defense argued that witnesses against Taylor had been rewarded [OSJI report] by the court for their participation in the trial. The defense noted that all international tribunals reimburse witnesses for reasonable expenses related to their participation but argued that it appeared the witnesses against Taylor had actually profited making their testimony unreliable. The defense pointed to payments of some witnesses for "appreciation" as an example that witnesses were given gifts for providing evidence. Taylor has argued that the charges against him are politically motivated. The judges adjourned to deliberate on the verdict, which is expected to take several months. Taylor could face life imprisonment if convicted.

The closing arguments, which were originally set to begin last month, had been postponed pending an appeals chamber decision to accept the defense's final written brief [JURIST reports] after the trial chamber disregarded the brief because it was 20 days late. Taylor has denied [JURIST report] the charges [indictment, PDF] against him, which include murder, rape, sexual slavery and acts of terrorism stemming from from a "campaign to terrorize the civilian population" of Sierra Leone [JURIST news archive]. 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.




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ACLU urges DOJ action on Puerto Rico rights violations
Zach Zagger on March 11, 2011 11:01 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Thursday urged [letter, PDF; press release] the US Department of Justice (DOJ) [official website] to take action against the government of Puerto Rico [BBC backgrounder] for alleged civil rights violations. In a letter addressed to Assistant Attorney General Thomas E. Perez, the ACLU asked the DOJ to conclude its investigation into rights abuses reported [text, PDF] by the ACLU of Puerto Rico [advocacy website] since 2008 and publish a report of its findings. It also urged the DOJ to intervene to provide remedies to end the alleged police abuses which include: violence against student protestors; the fabrication of drug-related charges against over a 100 individuals in the city of Mayaguez; the violent and inhumane eviction of members of the Villas del Sol squatter community, including the denial of fresh water to the community for eight months; and actions the de-certification of the Puerto Rico Bar Association [official website, in Spanish] and other actions to stifle dissent. The letter continued:
Clearly, these allegations raise troubling questions about the Puerto Rican government's commitment to the human rights of its citizens and the First Amendment's protections of freedom of assembly, expression and the right to petition the government. We hope that DOJ will soon conclude its investigation and intervene into these unconstitutional practices.
The ACLU also expressed concerns over actions by the administration of Puerto Rican Governor Luis Fortuno (R) [official website, in Spanish]. Since he took office in 2009, the ACLU alleges that police have reacted violently to protests against the closure of legislative sessions to the public despite constitutional guarantees to the contrary and student protests against fee increases at the University of Puerto Rico (UPR) [academic website, in Spanish]. Residents of Puerto Rico, an unincorporated US territory, are US citizens and have the same federal First Amendment and due process [Cornell LII backgrounders] rights in relation to the island's government as a mainland US citizen would have against a state government.

Last week, US Representative Luis Gutierrez (D-IL) [official website] reiterated his earlier criticism [statement text] of the actions of the Puerto Rico government and entered the ACLU report into the Congressional Record. During his earlier statement, Gutierrez also criticized a ruling of Chief Judge Jose Fuste of the US District Court for the District of Puerto Rico [official website], who he alleged to be complicit in the rights abuses [statement text] by the Fortuno administration. Puerto Rico has faced several major protests in recent years [El Nuevo Dia report, in Spanish] as students and state workers demonstrate against government policies which have seen significant cuts in funding to UPR and reductions in the state workforce. The cuts were part of an attempt to reduce a $2 billion budget deficit. Following the cuts to the university, UPR students engaged in a strike [NYT report] after it was announced that new student fees would be used to fill the budget shortfall.




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Federal court indicts 14 suspected pirates
Julia Zebley on March 10, 2011 3:31 PM ET

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[JURIST] A grand jury in the US District Court for the Eastern District of Virginia on Thursday indicted [text, PDF] 14 suspects for overtaking a yacht containing four Americans. The Americans, taken as hostages, were later killed by the pirates, the first US citizens to die in the recent wave of international maritime piracy [JURIST news archive]. The suspects, 13 Somali and one Yemeni, were charged with piracy, conspiracy to commit kidnapping and the use of firearms during a crime. A juvenile who participated was not charged [WAVY report] due to his minor status and limited role in the hijacking. A conviction of piracy attaches a mandatory life sentence. In a press release [text], FBI Assistant Director-in-Charge of the New York Field Office Janice Fedarcyk [official profile] said:
Modern day piracy has real and serious consequences, disrupting commerce and threatening Americans' lives. It is a crime against the international community, a form of terrorism on the high seas. Today's charges should send a clear message to those who attempt to engage in piracy against Americans or American vessels: even on the open ocean, you are not beyond the reach of American justice.
Federal prosecutor Neil MacBride [official profile] stated that more charges could be filed. There have been seven convictions of pirates in the US, with five awaiting sentencing [JURIST report]. The other two received 30- and 34-year sentences [JURIST reports].

Piracy near the continent of Africa has become an increasingly serious problem for private shipowners and many nations. In January, the UN Secretary-General's special adviser on maritime piracy Jack Lang [official profile] proposed an international piracy court [JURIST report]. Due to the lack of such a court, several nations have been conducting piracy trials. A German court began the trial [JURIST report] of 10 suspected Somali pirates in that country's first piracy trial in 400 years in November. A Yemeni court sentenced [JURIST report] a group of 10 Somali pirates to five years in prison. Prior to these trials, Kenya was conducting the bulwark of piracy trials. However, the high court of Mombasa ruled that Kenya does not have jurisdiction [JURIST report] outside of its national waters, releasing nine suspected Somali pirates. Other nations that have conducted such trials include the Netherlands, Seychelles, Mauritius, Somalia, and Spain [JURIST reports].




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Yemen president promises new constitution as protests continue
Julia Zebley on March 10, 2011 1:48 PM ET

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[JURIST] Yemeni President Ali Abdullah Saleh [official website] promised Thursday to create a new constitution guaranteeing parliamentary and judiciary freedoms, but protesters were not satisfied, flooding the streets in response. In a speech [press release] given to supporters in Sana'a, Saleh promised various reforms:
The initiative includes transferring government power to an elected parliamentary system by the end 2011, shifting the local authority to full-power local ruling, establish Yemeni regions on the grounds of economic and geographical criteria and prepare a new election law includes proportional representation in addition to forming a new government of national unity.
Saleh also ordered officials "to listen to demands of the youth who are holding sit-ins." Saleh has previously pledged not to run for reelection [Yemen Post report] and will retire in 2013. He promised not to allow his son to succeed him, ordered a 15 percent salary increase for government employees and canceled student tuition fees at public universities. Protests have continued despite his announcement, culminating on Tuesday near Sana'a University, when security forces fired tear gas and rubber bullets on anti-government protesters. Conflicting reports state as many as 80 were injured [Yemen Post report], and as many as two killed [AP report].

Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen [BBC Profile] since February, largely calling for Saleh to step down. Saleh has been in power since 1978 and is considered popular in Yemen and the international community. However, he and his party, the General People's Congress (GPC) have caused mounting political tensions due to attempts to remove presidential term limits [JURIST report] and expand their political power. In December, the parliament stoked outrage among opposition parties and independents when it amended the constitution [AFP report] to eliminate provisions requiring that opposition parties be represented on the high election commission. Although the government has maintained control urban areas, the northern and southern parts of the country remain unlawful and dangerous, plagued by southern separatists groups and al Qaeda [JURIST news archive]. Due to this, Saleh and Yemen have allied to the US in the war on terror, accepting military aid and allowing drone strikes to defeat al Qaeda. The protests in Yemen have been analyzed in two recent JURIST op-eds: Constitutional Enforcement in Tunisia, Yemen, and Egypt by L. Ali Khan, Professor of Law at Washburn University, and The Middle East protest movements: each with a story, all with uncertainty by Dr. Jonathan Schanzer, Vice President of Research, Foundation for Defense of Democracies [advocacy organization].




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DRC military court jails army officers for rape
Jaclyn Belczyk on March 10, 2011 1:43 PM ET

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[JURIST] A military court in the Democratic Republic of the Congo (DRC) [JURIST news archive] has sentenced 11 army officers to prison for raping more than 20 women last year, a court official said Thursday. Three officers were sentenced to 15 years in prison [AFP report], while eight others were sentenced in absentia to life. UN envoy on sexual violence, Margot Wallstrom, welcomed the verdict [UN News Centre report] as sign that justice is possible. "This sends a strong signal to all perpetrators of acts of sexual violence that no military commander is beyond the law, including members of a national army," she said. "It also shows that the focus on ending impunity for this type of crimes continues to render concrete results."

Last month, the same court found Lt Col Kibibi Mutware guilty of involvement in mass rapes [JURIST report] that took place on New Year's Day and sentenced him to 20 years imprisonment, dismissing him from the military. Eight of his troops were also given prison sentences of between 10 and 20 years and expelled from the army for their involvement in the attack. The DRC has been called the 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]. 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. 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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Morocco king announces plans for constitutional reform
Hillary Stemple on March 10, 2011 11:31 AM ET

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[JURIST] King Mohammed VI of Morocco on Wednesday announced plans for a series of constitutional reforms [text], which, if enacted, would result in more power being given to elected officials, as well as an independent judiciary. Under the plan, the prime minister would be chosen based on the political party elected to a majority of seats in parliament, more power would be granted to the parliament and local officials would also be granted more power through a "regionalization program." Under the regionalization program, officials would be elected to regional councils through a direct vote, and the councils would be responsible for governing the affairs of the region. The monarch stressed the importance of regional equality, stating:
Our ultimate objective is to strengthen the foundations for a Moroccan regionalization system throughout the Kingdom, particularly in the Moroccan Sahara provinces. It should be based on good governance which guarantees a new, more equitable system for sharing not only powers, but also resources between the central authority and the regions. What I do not want is a two-speed regionalization, with fortunate regions that have the resources required for their progress on the one hand, and underprivileged regions lacking the requisites for development, on the other.
The plan would also promote the participation of women in the political process, and it was noted that "the law should favour equal access by women and men to elected office." In order to begin the reform process, Mohammed announced the formation of a committee, which will meet with the various factions within the country and formulate specific language for the constitutional reforms based on the guidelines set forth by the monarch. According to the king, the committee is to make their recommendations by June, and the constitutional reforms will then be put to a vote in a national referendum.

The announcement of the constitutional reforms comes less than a month after thousands of Moroccans demonstrated [AFP report] across the country, demanding limits on the power of the monarch, as well as more sweeping political reform. Similar protests have occurred recently throughout the Middle East and North Africa [BBC backgrounder], and have resulted in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports]. Protests continue in Libya, where leader Muammar Gaddafi [BBC profile; JURIST news archive] and his inner circle have been accused of perpetrating violence against protesters [JURIST report]. Last month, the UN Security Council [official website] voted unanimously to impose sanctions [JURIST report] on Libya and to refer ongoing repression of demonstrators in the country to the International Criminal Court (ICC) [official website]. ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] has announced that the ICC will fully investigate allegations of crimes against humanity in Libya and that the ICC will not grant immunity [JURIST reports] to any person perpetrating those crimes.




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Oklahoma House approves bill banning abortion after 20 weeks
Jaclyn Belczyk on March 10, 2011 11:10 AM ET

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[JURIST] The Oklahoma House of Representatives [official website] voted 94-2 Wednesday to approve a bill [HB 1888] that would ban abortion [JURIST news archive] after 20 weeks of gestation. The "Pain-Capable Unborn Child Protection Act," similar to a bill passed in Nebraska [JURIST report] last year, is based on evidence suggesting that a fetus can feel pain after 20 weeks [Reuters report]. The legislation would permit abortions after the 20-week mark only in cases where the mother's life is at risk or she faces serious injury. Doctors who perform abortions after 20 weeks would be subject to criminal prosecution, but there would be no penalty for women undergoing the procedure. The bill will now advance to the Senate, where it is expected to pass [NewsOK report].

This bill is the latest attempt by the Oklahoma legislature to place restrictions on abortion. In July, an Oklahoma district judge extended a temporary restraining order blocking enforcement of a new law [JURIST report] requiring women seeking abortions to have an ultrasound and hear a description of the fetus. In May, Oklahoma lawmakers overrode a veto [JURIST report] by Oklahoma Governor Brad Henry [official website] and approved a bill 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. In April, Henry signed three abortion bills into law [JURIST report]. The first bill prohibits abortions performed because of the gender of the fetus. The second bill creates the Freedom of Conscience Act and protects medical employees who refuse to participate in procedures such as abortion based on religious beliefs. The third bill regulates the use of RU-486, or mifepristone, a chemical used in abortion procedures.




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Kenya to challenge ICC summons
Hillary Stemple on March 10, 2011 10:35 AM ET

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[JURIST] The Kenyan government announced Wednesday that they will challenge the admissibility of cases [press release] relating to the 2007-2008 post-election violence [JURIST news archive] in the International Criminal Court (ICC) [official website], as well as the jurisdiction of the court. The ICC on Tuesday issued summons [JURIST report] for six Kenyans accused of inciting the violence, including current Deputy Prime Minister Uhuru Muigai Kenyatta and several Ministry heads. All six are believed to have fomented violence, rape and destruction of property during the 30 days of violence. A government spokesperson stated the ICC summons are an attempt to signal that Kenya is a failed state [Bloomberg report]. He also noted that the government's challenge of the ICC's jurisdiction is a way to show the country's progress. The suspects have been summoned to appear before the ICC on April 7 for an initial appearance. This would be followed by a confirmation of charges hearing, after which the court would then need to decide whether the suspects should stand trial.

Members of the Kenyan government have previously rejected the ICC's authority to try cases relating to the post-election violence. In December, the Kenyan Parliament [official website] approved a motion to withdraw [JURIST report] the country from the ICC. The motion was approved after ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] identified the six suspects targeted by the ICC and rejected the notion [JURIST reports] that threats of violence would delay the prosecution. In November, the Kenyan National Commission on Human Rights, which implicated former Cabinet minster William Ruto of interfering with the ICC investigation, denied accusations that it had bribed witnesses [JURIST report]. Moreno-Campo had also said that the court will not use testimony [JURIST report] from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. In September, Kenyan businessman Joseph Gathungu filed a lawsuit challenging the constitutionality [JURIST report] of the ICC investigation into the post-election violence. Violence following the election left more than 1,100 people dead, 3,500 injured and up to 600,000 forcibly displaced. In addition, there were hundreds of rapes and more than 100,000 different properties were destroyed in Kenya.




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Illinois abolishes death penalty
Julia Zebley on March 9, 2011 3:19 PM ET

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[JURIST] Illinois Governor Pat Quinn [official website] signed Senate Bill 3539 [text] on Wednesday, absolishing the death penalty [JURIST news archive] in Illinois. Two months after the Illinois Senate [official website] approved the bill [JURIST report], Quinn signed the bill [audio] into law. Justifying his decision in a statement [press release], Quinn said:
Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case. For the same reason, I have also decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release. I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims' families in overcoming their pain and grief.
Illinois legislators have attempted to ban the death penalty since then-governor George Ryan put a moratorium on it 11 years ago. Although the new law will officially take effect [Chicago Tribune report] on July 1, Quinn commuted the current 15 death row inmates' sentences to life without parole.

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




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Blagojevich asks judge to cancel retrial
Jaclyn Belczyk on March 9, 2011 2:09 PM ET

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[JURIST] Former Illinois governor Rod Blagojevich [JURIST news archive] on Wednesday asked a federal judge to cancel his retrial [motion to dismiss] and sentence him on the single charge on which was originally convicted. Blagojevich was found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. In the motion to dismiss the new trial, Blagojevich's lawyers argued that economic reasons make a second trial "imprudent":
To date, defense counsel have been working on the Blagojevich case for almost nine months without pay. This has caused a significant hardship and has deprived Blagojevich of his right to effective assistance of counsel as required by the Sixth Amendment to the Constitution. ... Based upon the economic hardships, the inequities and the unnecessary drain on taxpayer funds (funds may not even exist in the future), this case should be dismissed. The Court can proceed immediately to sentencing on the conviction from the first trial.
Blagojevich has always maintained his innocence, and the false statements charge carries a maximum sentence of five years in prison.

Last month, a judge for the US District Court for the Northern District of Illinois [official website] granted federal prosecutors' motion to dismiss three charges [JURIST report] against Blagojevich in an apparent effort to simply their case before the April 20 retrial. 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. In September, lawyers for Blagojevich asked the judge to throw out the sole conviction, stating that the government failed to meet its required burden of proof, but the judge refused [JURIST reports]. In January 2009, the Illinois State Senate voted unanimously to convict Blagojevich of abuse of power and remove him from office [JURIST report]. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008.




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UN to probe Gaddafi over Libya torture allegations
Julia Zebley on March 9, 2011 1:59 PM ET

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[JURIST] The UN appointed a team of special prosecutors on Wednesday to investigate allegations that Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] has ordered forces to torture and abduct opponents. Although a probe was launched last week [JURIST report] in the International Criminal Court (ICC) [official website], special rapporteur for torture Juan Mendez [UN profile] clarified [AP Report] that this probe is different because he and his fellow investigators are "independent experts." Mendez is focusing on accusations that Gaddafi has ordered hospital patients' executions, fired on crowds of protesters and used other extreme tactics against his opponents. Describing complaints as "well-documented," Mendez has reached out for information from Gaddafi and stated that a lack of response will be documented in monthly reports to the UN Human Rights Council (UNHRC) [official website].

Earlier this month, the UN Security Council voted unanimously [press release] to impose sanctions [JURIST report] on Gaddafi, marking the first unanimous referral to the ICC in UN history. Resolution 1970 also received support from Libya's delegation itself, which renounced Gaddafi [Reuters report]. The UN General Assembly voted last week to suspend Libya [JURIST report] from the UNHRC in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. According to a statement issued by the court, the ICC will not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.




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Lawyer for ex-Liberia president argues bias in war crimes trial
Andrea Bottorff on March 9, 2011 11:20 AM ET

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[JURIST] A defense lawyer representing former Liberian president Charles Taylor [BBC profile; JURIST news archive] on Tuesday accused the Special Court for Sierra Leone (SCSL) [official website] of political bias during his closing arguments in Taylor's trial [OSJI backgrounder] in The Hague on charges of war crimes and crimes against humanity. British defense lawyer Courtenay Griffiths [official profile] called the trial a "21st-century form of neo-colonialism" and criticized the court for being politically biased [BBC report], citing information found in US documents released by Wikileaks [website; JURIST news archive] and the international court's failure to indict other African leaders, including Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] who is currently under investigation [JURIST report] for crimes against humanity. The closing arguments, which were originally set to begin last month, had been postponed pending an appeals chamber decision to accept the defense's final written brief [JURIST reports] after the trial chamber disregarded the brief because it was 20 days late. The arguments are scheduled to finish [OSJI report] on Friday.

Taylor has denied [JURIST report] the charges [indictment, PDF] against him, which include murder, rape, sexual slavery and acts of terrorism stemming from from a "campaign to terrorize the civilian population" of Sierra Leone [JURIST news archive]. 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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DOJ appeals Florida health care ruling
Andrea Bottorff on March 9, 2011 10:14 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday appealed [notice, PDF] a ruling in the US District Court for the Northern District of Florida [official website] declaring the health care reform law [HR 3590; JURIST news archive] unconstitutional [order, PDF]. On Friday, Judge Roger Vinson granted [order, PDF; JURIST report] the Obama administration's petition to stay his previous order [JURIST report] on the condition that an appeal would be filed within a week. The stay has allowed the administration to continue its implementation of the law in other states until after appellate review. The administration had not formally sought a stay on the injunction, but rather had requested Vinson to "clarify" [JURIST report] his earlier judgment in order to determine its "potential impact" on the implementation of the Act. In January, Vinson voided the entire Patient Protection and Affordable Care Act (PPACA), saying that requiring all Americans over the age of 18 to have health insurance violated the Constitution by exceeding Congress' Commerce Clause [Cornell LII backgrounder] power. The case will now be reviewed by the US Court of Appeals for the Eleventh Circuit [official website].

The health care reform law is the subject of numerous legal challenges across the country. Last month, Virginia Attorney General Kenneth Cuccinelli [official website] filed a petition [JURIST report] for a writ of certiorari [text, PDF] with the US Supreme Court [official website] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. 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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Texas House approves bill requiring ultrasounds before abortions
Daniel Makosky on March 8, 2011 5:27 PM ET

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[JURIST] The Texas House of Representatives [official website] on Monday voted 107-42 [roll call] to approve legislation that requires women seeking an abortion [JURIST news archive] to undergo an ultrasound before the procedure is performed. The bill [HB 15 text; materials] requires doctors to conduct a vaginal ultrasound and display the images at least 24 hours prior to an abortion, and would strip them of their medical licenses should they fail to do so. It is now expected to proceed to a conference committee [Houston Chronicle report] to reconcile with the Senate [official website] version [SB 16 text; materials], passed [roll call vote] last month. Key differences in the Senate bill include a waiting period of only two hours and exceptions from the requirements under certain circumstances, including rape, incest or fetal abnormalities. Once through committee, the legislation will go to Governor Rick Perry [official website] for his signature.

Last month, the Kansas House of Representatives [official website] approved several new abortion restrictions, including one similar to a recent Nebraska act [JURIST reports] that prohibits the procedure after the 20-week mark, when some studies suggest a fetus can begin feeling pain. 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 an extensive questionnaire a month after passing laws [JURIST report] prohibiting abortions performed because of a fetus' gender, 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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Federal judge blocks damages in Chevron Ecuador pollution case
Daniel Makosky on March 8, 2011 4:05 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Monday issued a preliminary injunction barring the enforcement of a recent Ecuadorian court judgment against US oil company Chevron [corporate website; JURIST news archive]. The injunction blocks [Reuters report] plaintiffs from attempting to secure $8.6 billion in damages from the company, which were awarded [JURIST report] last month by the Provincial Court of Sucumbios after finding that Texaco, which was acquired by Chevron in 2001, polluted large areas of Ecuador's rain forest. As Chevron does not hold assets in Ecuador, the ruling eliminates the possibility that the plaintiffs will seek enforcement in other countries where the company operates and reserves the final decision on enforcement for the US judicial system. The ruling effectively extends a temporary restraining order [text, PDF] issued last month.

Following last month's verdict, Chevron vowed to appeal [press release] and called the ruling "illegitimate and unenforceable" and "the product of fraud," while the plaintiffs' lawyer also announced his intention to appeal [NYT report] after the court awarded far less than the $113 billion originally sought. Also in February, 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. 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, 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.




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ICC summons 6 Kenya post-election violence suspects
Jaclyn Belczyk on March 8, 2011 3:44 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Tuesday issued summons [text, PDF; text, PDF] for six Kenyans suspected of inciting the 2007-2008 post-election violence [JURIST news archive]. In December, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] identified the six suspects, including current Deputy Prime Minister Uhuru Muigai Kenyatta and several Ministry heads. All six are believed to have fomented violence, rape and destruction of property during the 30 days of violence. The suspects were summoned to appear before the ICC on April 7 for an initial appearance. This would be followed by a confirmation of charges hearing, after which the court would then need to decide whether the suspects should stand trial.

Earlier in December, Moreno-Ocampo rejected the notion [JURIST report] that threats of violence would delay the prosecution. In November, the Kenyan National Commission on Human Rights, which implicated former Cabinet minster William Ruto of interfering with the ICC investigation, denied accusations that it had bribed witnesses [JURIST report]. Moreno-Campo had also said that the court will not use testimony [JURIST report] from three Kenyan witnesses who claim they were bribed to provide false evidence against a high-ranking government official. In September, Kenyan businessman Joseph Gathungu filed a lawsuit challenging the constitutionality [JURIST report] of the ICC investigation into the post-election violence. Violence following the election left more than 1,100 people dead, 3,500 injured and up to 600,000 forcibly displaced. In addition, there were hundreds of rapes and more than 100,000 different properties were destroyed in Kenya.




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ICC orders Darfur rebels to stand trial over peacekeeper killings
Jaclyn Belczyk on March 8, 2011 2:19 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Tuesday ordered two Darfur [JURIST news archive] rebel leaders to stand trial [press release] for war crimes. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) are suspected in connection with the September 2007 attack on African Union (AU) [official website] peacekeeping troops at Haskanita [BBC backgrounder], which resulted in the death of 12 peacekeepers. They are charged with three war crimes: violence to life and attempted violence to life; intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and pillaging. The men surrendered to the ICC in June and agreed not to contest the charges [JURIST reports] at a confirmation of charges hearing.

This will be the ICC's first trial for crimes committed in the Sudan's Darfur region. A third rebel leader, Bahar Idriss Abu Garda, was charged by the ICC earlier this year [case materials] in connection with the attack, but the charges were dropped [JURIST report] due to lack of evidence. Two other suspects, Ahmad Harun and Ali Kushayb, and Sudanese President Omar al-Bashir [JURIST news archive], remain at large. Bashir was charged with genocide [JURIST report] in July.




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ICJ orders Costa Rica, Nicaragua personnel from disputed border area
Jaclyn Belczyk on March 8, 2011 1:19 PM ET

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[JURIST] The International Court of Justice (ICJ) [official website] on Tuesday ordered [text, PDF; order summary, PDF] both Costa Rica and Nicaragua to remove all personnel from the disputed border region. Costa Rica filed a complaint with the ICJ [JURIST report] in November accusing Nicaragua of violating its territorial integrity and damaging protected wetlands. Tuesday's order is a preliminary measure while the case is pending before the court. The ICJ unanimously ordered all civilian, police and military personnel out of the area and voted 13-4 to allow Costa Rica to send environmental personnel to the area:
Each Party shall refrain from sending to, or maintaining in the disputed territory, including the cano, any personnel, whether civilian, police or security. ... Costa Rica may dispatch civilian personnel charged with the protection of the environment to the disputed territory, including the cano, but only in so far as it is necessary to avoid irreparable prejudice being caused to the part of the wetland where that territory is situated; Costa Rica shall consult with the Secretariat of the Ramsar Convention in regard to these actions, give Nicaragua prior notice of them and use its best endeavours to find common solutions with Nicaragua in this respect.
Officials from both countries praised the ruling [CP report].

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




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Federal judge refuses to order additional Exxon Valdez payment
Jaclyn Belczyk on March 8, 2011 12:07 PM ET

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[JURIST] A judge for the US District Court for the District of Alaska [official website] refused Monday to order Exxon Mobil [corporate website] to pay an additional $92 million in damages from the Exxon Valdez oil spill [BBC backgrounder; JURIST news archive]. Under a 1991 settlement agreement, Exxon paid $900 million in civil damages. The US and Alaskan government sought in 2006 to reopen the settlement agreement [JURIST report], saying more money was needed to clean up the crude oil that was still tainting Prince William Sound. Environmental activist Rick Steiner had filed a motion seeking court intervention to bring the reopener process to a close. Judge H Russel Holland, who has presided over much of the litigation stemming from 1989 spill, found that the US and Alaskan governments appeared to be close to reaching an agreement [Reuters report] with Exxon Mobil, refusing to order the payment.

In 2009, the US Court of Appeals for the Ninth Circuit [official website] ruled that Exxon Mobil owes interest [JURIST report] on the more than $500 million in punitive damages awarded against it following the spill. The US Supreme Court [official website] declined to rule [JURIST report] on the issue the previous year, thus remanding it to the Ninth Circuit. In June 2008, the Supreme Court ruled 5-3 to reduce a punitive damages award [JURIST report] to be paid by Exxon from $2.5 billion to $500 million, but did not rule on the issue of interest. In December 2006, the Ninth Circuit reduced [JURIST report] Exxon's original $5 billion punitive damage award by more than $2 billion, ruling that the award was excessive in light of a 2003 Supreme Court ruling that punitive damages must be reasonable and proportionate to the harm incurred, and also considering Exxon's cleanup and compensation efforts. The Valdez dumped 11 million gallons of crude oil into Prince William Sound and contaminated about 1,300 miles of coastline.




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EU Court of Justice rules against proposed European patent court
John Paul Putney on March 8, 2011 11:26 AM ET

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[JURIST] The European Court of Justice (ECJ) [official website] issued a non-binding advisory opinion [materials] Tuesday that the planned European and Community Patent Court (ECPC) is incompatible with EU law. The ruling is a significant setback for EU governments that have been negotiating for a unified EU patent system for over 30 years. The drive to unify the patent process is fueled in part by the complex process of securing a patent for each individual country in the EU, which requires numerous applications and costly translations. In addition, if litigation arises, litigants must take the dispute to every country where an infraction in occurring making enforcement an onerous task [AP report]. Efforts to establish a unified patent system have been opposed by Italy and Spain in part because the current plan allows for patents to be filed only in English, German or French [European Voice report]. The ECJ summed up its major objection to the proposed ECPC:
[T]he envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.
EU officials have been quick to note that the ruling is not fatal to a unitary patent regime, but rather to the ECPC which would have adjudicated disputes arising in connection with patents [AP report] in 38 countries including some countries not part of the EU.

In February, the European Parliament [official website] agreed [JURIST report] to the establishment of a common patent system [press release] despite lack of accord from Spain and Italy. 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. 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.




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UN rights chief urges Tunisia, Egypt to protect women's rights
John Paul Putney on March 8, 2011 10:24 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] pressed [statement] Tunisia and Egypt on Tuesday to ensure that women's rights receive constitutional protection and to include women in the dialogue to shape the future of their countries. Pillay's statement came in conjunction with International Women's Day. The High Commissioner expressed concern that constitutional reforms in Egypt were being "undertaken without [women's] full participation" and that some proposed reforms were discriminatory. Pillay urged action:
In Egypt and Tunisia, women were on Twitter, on Facebook, and on the streets. Women from all walks of life were marching alongside men, pushing boundaries and breaking gender stereotypes, just as eager for change, for human rights and for democracy. ... In these moments of historic transition in Egypt and Tunisia, it is important to ensure that women's rights are not set aside as something to be dealt with after the "crucial" reforms are won. Women's rights should be at the top of the list of new priorities. ... Women ... expect their state ... to uphold their dignity and worth, and to adopt laws, policies, and strategies that translate these words into tangible results. ... Only when women participate fully in policy-making and institution-building will their perspective be truly integrated. The concept of democracy is only truly realised when political decision-making is shared by women and men, and women's full participation in institutional re-building is guaranteed. Societies in which women are excluded, formally or informally, from public life, cannot be described as truly democratic.
Pillay addressed the persistent inequality between men and women around the world and urged vigilance against retrogression, and full participation in reform. Egypt's military council has been running the country since Egyptian president Hosni Mubarak was forced out [JURIST report] and has indicated a referendum will be held March 19 on constitutional reforms [Reuters report] proposed by a committee of legal experts.

Pillay has vociferously decried the use of violence against protesters in recent months as protests have spread across the Middle East and North Africa [BBC Backgrounder]. Last week, Pillay condemned the response by Middle Eastern governments [JURIST report] to peaceful protests during her opening remarks at the UN Human Rights Council [official website], urging the international community to take a strong stance against violence in Libya. In February, Pillay called on the Libyan government and Libyan leader Muammar Gaddafi [BBC profile] directly to stop the violence directed at protesters [JURIST report] within that nation. Also in February, Pillay said that the Libyan government's response to recent protests may amount to crimes against humanity [JURIST report].




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Obama orders resumption of Guantanamo military trials
Jaclyn Belczyk on March 7, 2011 4:55 PM ET

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[JURIST] US President Barack Obama [official website] on Monday issued an executive order [text; fact sheet] allowing military commissions for Guantanamo Bay [JURIST news archives] detainees to resume. New charges in the military commission system have been suspended since shortly after Obama took office in 2009. Monday's order also establishes a procedure for establishing a review process for detainees who have not been charged, convicted or designated for transfer. In a statement [text], Obama said:
From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system—including Article III Courts—to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.
The American Civil Liberties Union (ACLU) [advocacy website] condemned the order [press release], calling it, "window dressing for the reality that today’s executive order institutionalizes indefinite detention, which is unlawful, unwise and un-American."

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




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India high court rules 'passive euthanasia' permitted under certain circumstances
Erin Bock on March 7, 2011 4:12 PM ET

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[JURIST] The Supreme Court of India [official website] on Monday rejected a petition for mercy killing, but ruled [judgment, PDF] that passive euthanasia was permissible under certain circumstances. The case centered around Aruna Shanbaug, a former nurse who was raped and strangled at work 37 years ago and has been in Mumbai's King Edward Memorial Hospital in a blind and vegetative state ever since. Pinki Virani, a journalist and friend, petitioned the court [Hindustan Times report] to stop hospital staff from force feeding Shanbaug and allow her to die. The court stated that, while there is no statutory provision to support active euthanasia, where an individual dies by lethal injection, passive euthanasia through a withdrawal of life support would be permissible with approval by the high court after receiving requests from the government and close family members of the individual and getting the opinions of three respected doctors. The court determined that Virani was not as close to Shanbaug as hospital staff and rejected her petition.

Last year, the German Federal Court of Justice [official website, in German] ruled that emoving a patient from life support is not a criminal offense [JURIST report] if the terminal individual had previously given consent. The landmark ruling legalized the right to die [JURIST news archive] in Germany and overturned the nine-month sentence of a lawyer who was convicted for advising a client to remove her mother from life support after being in a coma since 2002. In 2009, Italian President Giorgio Napolitano [BBC profile] refused to sign an Italian government decree [JURIST report] that would stop the euthanasia of a comatose woman. Eluana Englaro [materials, in Italian] had been in a vegetative state for 16 years, and her father had petitioned to remove her feeding tube. Napolitano refused to sign the decree because it would effectively overrule a 2008 decision [JURIST report] by the country's Court of Cassation [official website, in Italian] to allow for removal of the tube, thus violating the separation of power between the executive and judicial branches. In 2006, a proposed bill that would legalize the option of assisted suicide in the UK was set aside by the House of Lords following opposition from the public and two physician groups [JURIST reports]. Also in 2006, the US Supreme Court upheld Oregon's Death with Dignity Act [JURIST report], the only American state law that allows physician-assisted suicide.




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Zimbabwe court detains activists on treason charges
Ashley Hileman on March 7, 2011 2:42 PM ET

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[JURIST] A Zimbabwe magistrate court on Monday ordered six of the 45 activists arrested in Harare last month detained on charges of treason, releasing the remaining 39. The six activists not released today will remain detained and face trial [CNN report] on the treason charges against them. If found guilty, they could be executed, pursuant to Zimbabwean law. The charges and subsequent arrests stem from the activists' attendance at a lecture on February 19, where footage of the widespread protests in Egypt [JURIST report], which resulted in the ouster of Egyptian President Hosni Mubarak [Al Jazeera profile], was shown. Defense lawyers maintain they were participating in an academic debate on African politics while prosecutors contend they were engaged in a discussion regarding the possibility of an ouster of President Robert Mugabe [BBC profile; JURIST news archive]. In making its decision, the court considered the activities each engaged in and held that the majority of them could be released as they had merely listened to allegedly treasonous utterances in contrast to the other six, who had organized and spoken at the meeting.

The protests in Egypt have led to a variety of reactions from countries across the globe. Last month, Human Rights Watch (HRW) [official website] reported [JURIST report] 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 were 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 reported 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.




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Supreme Court eases time limit on habeas petitions
Jaclyn Belczyk on March 7, 2011 1:40 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] unanimously in Wall v. Kholi [Cornell LII backgrounder; JURIST report] that a defendant's plea for leniency tolls the statute of limitations for filing a federal petition for habeas corpus under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) [text, PDF]. The US Court of Appeals for the First Circuit had reversed the district court's judgment that a petition for leniency is different from an appeal to correct legal errors and therefore does not result in a tolling of the statute of limitations under AEDPA. Agreeing with the First Circuit, Justice Samuel Alito wrote for the court:
We hold that the phrase "collateral review" in § 2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review. Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, we hold that respondent's motion tolled the AEDPA limitation period and that his federal habeas petition was therefore timely.
Justice Antonin Scalia filed a separate opinion concurring in part.

The First Circuit's decision was in line with a Tenth Circuit ruling on the same issue, but the Third, Fourth and Eleventh Circuits had previously ruled that a petition for leniency does not toll the statute of limitations under AEDPA. The Supreme Court's ruling resolves the circuit split.




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Georgia Supreme Court upholds voter ID law
Ashley Hileman on March 7, 2011 1:22 PM ET

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[JURIST] The Georgia Supreme Court [official website] on Monday upheld [decision, PDF] a state law that requires voters to present one of six government-issued photo identifications in order to vote. The Democratic Party of Georgia [party website] brought the suit against Governor Sonny Perdue, Secretary of State Karen Handel and the State Election board seeking permanent injunctive relief against enforcement of the 2006 Photo ID Act (OCGA § 21-2-417 text, PDF), contending that the ID requirement imposes a condition on the right of registered Georgia voters to vote, in violation of numerous sections of the state's constitution. The Democratic Party further argued that the act creates an undue burden on the right to vote and thus violates the equal protection clause of the Georgia Constitution. The court, voting 6-1, held:
The 2006 Act does not deprive any Georgia voter from casting a ballot in any election. A registered voter who does not possess a photo ID and who desires to vote in person can obtain a free photo ID at one or more locations in the county of his or her residence. This Court has held that requiring an additional step in the voting process in order to validate identity is not unconstitutional. Alternatively, if a registered voter appears at the polls without a photo ID, that individual may still cast a provisional ballot and have the vote counted upon presentation of an acceptable photo ID within 48 hours. Finally, an elector who does not wish to obtain a free photo ID can vote by absentee ballot by mail.
The 2006 Photo ID Act has been challenged, relatively unsuccessfully, since its inception. In 2009, the US Court of Appeals for the Eleventh Circuit [official website] upheld [JURIST report] the law after two elderly voters in Georgia filed suit, alleging that the ID regulation made it difficult for them to participate in elections. This decision, along with the most recent one, rely to a large extent on the April 2008 Supreme Court ruling in Crawford v. Marion County Election Board [opinion, PDF; JURIST report], which held that Indiana's controversial voter identification statute did not put an undue burden on the right to vote and therefore did not violate the US Constitution.

In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of an Arizona law requiring proof of citizenship for voter registration in October. The court held that the law, Proposition 200 [text, PDF], was inconsistent with the National Voter Registration Act of 1993 (NVRA) [materials], which was passed with the intent of increasing voter registration and removing barriers to registration imposed by the states. The NVRA requires voters to attest to the validity of the information on their registration form, including their citizenship, but does not require them to provide additional proof of citizenship. Proposition 200 went beyond the federal statute, requiring applicants to show proof of citizenship before registering to vote.




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Supreme Court rules against government in Freedom of Information case
Jaclyn Belczyk on March 7, 2011 12:36 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 8-1 in Milner v. Department of the Navy [Cornell LII backgrounder; JURIST report] that the government may not withhold certain information under the Freedom of Information Act (FOIA) [text]. The issue was whether 5 USC § 552(b)(2) (Exemption 2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others. Petitioner Glen Scott Milner filed two FOIA requests for information about a US Navy magazine near his home, but the Navy withheld certain documents under Exemption 2. The US Court of Appeals for the Ninth Circuit found [opinion, PDF] in favor of the Navy, ruling that Exemption 2 encompasses two exemptions—the "Low 2" exemption, which covers ordinary employment matters, and the "High 2" exemption, which covers materials whose "disclosure may risk circumvention of agency regulation." Reversing the Ninth Circuit, Justice Elena Kagan wrote for the majority:
Exemption 2, consistent with the plain meaning of theterm "personnel rules and practices," encompasses onlyrecords relating to issues of employee relations and human resources. The explosives maps and data requested heredo not qualify for withholding under that exemption. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistentwith this opinion.
Justice Samuel Alito filed a concurring opinion. Justice Stephen Breyer filed a dissent.

Milner lives near Indian Island, a small island in the state of Washington that houses a naval magazine in which the Navy maintains non-nuclear explosives. In 2003 and 2004, Milner submitted two FOIA requests to the navy, seeking, among other things, explosive safety quantity distance (ESQD) information for the naval magazine. The Navy disclosed most of the documents that Milner requested but withheld the ESQD information on the grounds that it could threaten the naval magazine and surrounding community's safety and security.




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Supreme Court allows death row inmate to access DNA testing
Jaclyn Belczyk on March 7, 2011 11:16 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 6-3 in Skinner v. Switzer [Cornell LII backgrounder; JURIST report] that a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim under Section 1983 [text]. Texas death row inmate Henry Skinner filed a § 1983 claim seeking access to DNA evidence that he believes will prove his innocence. The US Court of Appeals for the Fifth Circuit affirmed [opinion, PDF] a district court decision to dismiss Skinner's claim, stating that relief could only be sought through habeas corpus. Reversing the Fifth Circuit, Justice Ruth Bader Ginsburg wrote for the majority:
[W]e hold that a postconviction claim for DNA testing is properly pursued in a § 1983 action. Success in the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory, or inconclusive. In no event will a judgment that simply orders DNA tests "necessarily impl[y] the unlawfulness of the State's custody."
Justice Clarence Thomas filed a dissenting opinion, joined by Justices Anthony Kennedy and Samuel Alito.

Skinner was convicted and sentenced to death in 1995 for the murders of his live-in girlfriend, Twila Busby, and her two sons. He claims that, while he was in the house at the time the murders occurred, he was incapacitated by large quantities of alcohol and codeine. He has identified Busby's uncle as the possible murderer and believes that DNA evidence will exonerate him.




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France ex-president Chirac goes on trial for corruption
Erin Bock on March 7, 2011 11:16 AM ET

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[JURIST] A French court on Monday began the trial of former president Jacques Chirac [BBC profile; JURIST news archive] but immediately suspended proceedings. The trial was suspended [WSJ report] in light of claims made by co-defendant Remy Chardon, Chirac's former chief of staff, that a decision by the prosecution to dismiss the statute of limitations in the case against Chardon violates the French Constitution. The trial is a combination of two separate corruption-related cases, which accuse Chirac and nine others, including Chardon, of misusing public funds [BBC report] during Chirac's time as mayor of Paris. Chirac allegedly financed the Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French], by illegally establishing fake city positions between 1977 and 1995 for party members to collect salaries totaling several million dollars. The first day of trial was reserved for procedural matters, and Chirac did not attend. The court is expected to make a decision regarding the constitutional claim on Tuesday. Under French law, Chirac is not obligated to appear in court during any of the proceedings, but it is anticipated that he will be at the proceedings on Tuesday if the trial goes forward. The trial will be "adjourned indefinitely" if the constitutional claim is referred to a higher court.

The trial began despite the fact that the main plaintiff dropped out of the suit. Last September, the Paris city council accepted a settlement deal [JURIST report] in which the former president agreed to pay USD $741,000 in compensation for the money paid out for false jobs. In exchange, the city agreed to drop out of a corruption suit. Chirac stated that the settlement was not an admission of guilt. A French judge placed Chirac under preliminary investigation [JURIST report] in December 2009. Chirac's trial on corruption charges marks the first time [JURIST comment] a former president will have to answer to charges against him in a court of law.

3/8/11 - The court has postponed Chirac's trial until at least June to consider the constitutional challenge.




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Supreme Court to rule on copyright protections for foreign works
Jaclyn Belczyk on March 7, 2011 10:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in Golan v. Holder [docket; cert. petition, PDF] to determine the copyright status of foreign works that used to be in the public domain. Section 514 of the Uruguay Round Agreements Act of 1994 (URAA) [text] restored copyright protection to thousands of foreign works that had previously been in the public domain. The questions before the court are: (1) whether the Progress Clause [Art I, § 8, cl 8 text] of the US Constitution prohibits Congress from taking works out of the public domain; and (2) whether Section 514 violates the First Amendment [text]. Petitioners are a group of orchestra conductors, educators, performers, film archivists and motion picture distributors, who previously performed, adapted, restored and distributed these works without restriction. The US Court of Appeals for the Tenth Circuit ruled [opinion, PDF] "that Section 514 of the URAA is not violative of the First Amendment," overturning the district court's grant of summary judgment for the petitioners.



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Third Circuit rejects Second Amendment rights for felons
Daniel Makosky on March 6, 2011 12:58 PM ET

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[JURIST] The US Court of Appeals for the Third Circuit [official website] on Friday ruled [opinion, PDF] that barring convicted felons from possessing firearms does not infringe upon their constitutional rights. Attorneys for James Barton, previously convicted on drug and weapons charges, argued that his 2007 arrest on two counts of being a felon in possession of a firearm under 18 USC § 922(g)(1) [text] constitutes a violation of Barton's Second Amendment [text] rights. The court's ruling acknowledges an individual's right to bear arms as "fundamental," but also recognizes the validity of "longstanding prohibitions on the possession of firearms," including prior felony convictions. Responding to Barton's citation to the 2008 Supreme Court ruling in District of Columbia v. Heller [opinion, PDF; JURIST report], in which the right to possess a handgun in one's home for the purpose of self-defense was upheld, the court noted that the decision was conditioned on a finding that the party is "not 'disqualified from the exercise of Second Amendment rights.'" Per the court, the nature of Barton's earlier offenses and their correlation with violent crime rendered the argument inapplicable.

In June, the US Supreme Court ruled [JURIST report] in a 5-4 decision that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment applicable to states as well as the federal government. In the case of McDonald v. Chicago [Cornell LII backgrounder], the Supreme Court struck down the city's ordinance that effectively banned the possession of handguns in the city. The ruling was premised in part on the Heller decision, in that that the Second Amendment right to own firearms for lawful purposes is not unlimited.




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Utah legislature approves new version of Arizona-style immigration bill
Carrie Schimizzi on March 6, 2011 12:18 PM ET

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[JURIST] The Utah House and Senate [official websites] on Friday approved a new Arizona-style immigration law. The Utah Illegal Immigration Enforcement Act [HB 497 text, PDF] replaces the older version [HB 70 text, PDF] of the law that had lost favor with state Senate members in the last few weeks. The new law omits [text, PDF] the controversial language [Salt Lake Tribune report] that critics had accused of being too similar to the controversial Arizona-style law. The Utah law still requires police officers to question any individual about their immigration status if stopped for a felony or serious misdemeanor, but now omits the "reasonable suspicion" standard for police officials. The new law also clarifies that any inquiry into the legal status of a person stopped for a lesser misdemeanor is optional. The new law also eliminates a provision that would have made it mandatory for anyone in Utah to carry identification with them at all times. Critics of the law, however, remain skeptical [Salt Lake Tribune report] as to whether the changes are significant enough to differentiate Utah's immigration policies from those of Arizona.

The older version of the bill, sponsored by Representative Stephen Sandstrom (R) [official profile], was approved by the House [JURIST report] last month, but the bill soon lost favor in the Senate, causing Sandstrom to abandon the bill [Salt Lake Tribune report] and draft a new version. 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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Washington approves bill recognizing out-of-state same-sex marriages
Maureen Cosgrove on March 5, 2011 3:05 PM ET
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