June 2011 Archives


DOJ to investigate 2 overseas detainee deaths
Maureen Cosgrove on June 30, 2011 3:22 PM ET

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[JURIST] US Attorney General Eric Holder [official website] announced Thursday that he would continue investigating the deaths of two detainees [press release] who died during interrogations by the Central Intelligence Agency (CIA) [official website]. Former attorney general Michael Mukasey had appointed Assistant United States Attorney John Durham in 2008 to conduct a criminal investigation into the destruction of 92 interrogation videotapes [JURIST report] by the CIA and to determine whether federal laws were violated during overseas interrogations. After extensive investigation, Durham recommended that Holder order a full criminal investigation into the deaths of two particular detainees, but that criminal investigations of the remaining cases was unwarranted. Holder stated that he would not prosecute anyone in the CIA acting in good faith or under the advice of the Office of Legal Counsel [official website], but investigations into the two deaths will be ongoing.

In January, a federal judge told the CIA that it must investigate the destruction of the interrogation tapes [JURIST report] related to individuals detained after 9/11 [JURIST news archive] and prevent similar incidents from happening in the future. Internal CIA documents [part 1, PDF; part 2, PDF; part 3, PDF] released last year reveal that the former head of the agency Porter Goss may have agreed to the destruction [JURIST report] of videotapes [JURIST news archive] showing harsh interrogations of terror suspects. According to redacted documents [text, PDF] filed in March 2009, 12 of 92 videotapes contained evidence of "enhanced interrogation techniques." The DOJ had acknowledged in March 2009 that the CIA destroyed [letter, PDF] the videotapes of high value terrorism suspect interrogations in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications on why it could not release the information. The August 2008 order came in response to a December 2007 ACLU motion [text, PDF] that the CIA be held in contempt of court for not providing information on the tapes during a Freedom of Information Act (FOIA) [text] lawsuit [ACLU materials] brought by the organization in an effort to access government materials on the interrogations.




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Federal judge upholds decision listing polar bears as threatened
Chris Morris on June 30, 2011 3:18 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Thursday upheld [opinion, PDF] a 2008 decision by the Fish and Wildlife Service (FWS) [official website] to list polar bears as "threatened" on the endangered species list because of melting polar ice caps caused by global warming [JURIST news archive]. Environmental groups and the state of Alaska were in conflict as to the proper way to address the bears' protection, with environmental groups wanting more protection and Alaska arguing that the listing was unnecessary because of other existing laws and the alleged uncertainty of climate science. The court, however, ruled in favor of the FWS:
Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.
Although polar bears are at an unendangered population now, it is predicted that melting ice caps will kill 10,000 of the species [AP report].

In 2009, the Obama Administration received criticism for preserving the controversial Bush-era rule [text, PDF] that limits how polar bears are protected from global warming. Secretary of the Interior Ken Salazar [official profile] had received special permission from Congress to amend the rule, which prevented the use of the Endangered Species Act (ESA) [text, PDF] to regulate greenhouse gas emissions. Polar bears are protected under the ESA, and environmentalists have argued that the release of greenhouse gases has contributed to global warming, which is destroying the polar bear's arctic habitat. The rule was put in place in December 2008 after the polar bear was listed as threatened on the endangered species list in May 2008. The Department of the Interior [official website] made the designation more than two years after the Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council [advocacy websites] petitioned to protect the polar bear under the ESA. Shortly after that, then-Alaska governor Sarah Palin announced that her office would launch a court challenge [JURIST report] to the listing of the polar bear on the endangered species list. Palin argued that the designation of the polar bear as "threatened" would have a negative impact on development in Alaska.




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Federal judge allows Google Street View suit to proceed
Julia Zebley on June 30, 2011 3:14 PM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Thursday rejected a motion by Google [corporate website; Bloomberg backgrounder] to dismiss class-action lawsuits under wiretapping laws. Judge James Ware denied [AP report] Google's argument that when they collected information while creating their Street View [official website] feature, the information was freely and publicly available. Google collected private details transmitted on unencrypted wireless connections, but the company claims it was inadvertent. Ware did dismiss state claims [Bloomberg report], but allowed federal claims to go forward.

Ware approved a settlement agreement [text, PDF] in a privacy lawsuit [JURIST report] against Google over its Buzz [website] social networking application earlier this month, awarding damages to privacy groups previously left out of the original proposed settlement. In March, the FTC settled a similar privacy lawsuit [JURIST report] against Google over charges that the Internet giant breached consumer privacy rights and was misleading during the launch of Buzz. The FTC 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. 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 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.




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USSC unanimously approves retroactive application of reduced crack sentencing law
Julia Zebley on June 30, 2011 2:12 PM ET

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[JURIST] The US Sentencing Commission (USSC) [official website] voted unanimously [press release, PDF] on Thursday to implement the retroactive application of the Fair Sentencing Act [S 1789 materials], which brings the sentences for crack cocaine more in line for those of powder cocaine. The retroactive sentencing will go into effect with the law on November 1, unless Congress acts to stop the USSC's decision by then. The USSC estimates that this will affect the sentences of 12,000 federal inmates. However, the decision does not mean that all prior offenders will be eligible for reduced sentences. It will still be up to a federal sentencing judge to determine whether the particular offender is eligible based on a consideration of many factors, including whether releasing the offender would harm to public safety. Judge Patti B. Saris said:
The Commission is aware of concern that today's actions may negatively impact public safety. However, every potential offender must have his or her case considered by a federal district court judge in accordance with the Commission's policy statement, and with careful thought given to the offender's potential risk to public safety. The average sentence for a federal crack cocaine offender will remain significant at about 127 months.
The decision is identical to the position taken by US Attorney General Eric Holder [official website], who testified [text, PDF; JURIST report] before the USSC in June.

The Fair Sentencing Act amended existing law to reduce the current sentencing ratio from 100:1 to 18:1. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. President Barack Obama signed [JURIST report] the Fair Sentencing Act into law last year. Human Rights Watch (HRW) [advocacy website] praised [press release] the bill's passage, stating that the old law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. In April 2008, a study released by the USSC reported that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced [JURIST report] under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties.




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Canada high court to hear convicted terrorist appeal
Maureen Cosgrove on June 30, 2011 1:44 PM ET

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[JURIST] The Supreme Court of Canada [official website] on Thursday declared that it would hear an appeal of convicted terrorist Mohammed Momin Khawaja [CBC backgrounder; JURIST news archive]. The high court granted an application for leave to appeal [judgment, PDF] filed by Khawaja challenging the life sentence imposed by the Ontario Court of Appeals [official website]. Khawaja, the first person to be charged and tried under the Anti-Terrorism Act [text; CBC backgrounder], was convicted [JURIST report] in October 2008 of designing a remote detonator and providing other support to a group that was convicted in 2007 [JURIST report] of planning to detonate a large fertilizer bomb. When Ontario Superior Court [official website] Justice Douglas Rutherford sentenced Khawaja [reasons for sentence, PDF; JURIST report], prosecutors asked that he be given more than two life sentences. When Khawaja was sentenced to only 10.5 years, the Public Prosecution Service of Canada [official website] sought leave to appeal [press release], arguing that the sentence was too lenient. In addition to ruling on the length of the sentence, the Supreme Court will likely rule [CP report] on the constitutionality of the legal definition of "terrorist activity."

Khawaja was found guilty of participating in a terrorist group, instructing a person to finance terrorism, making property available to terrorists, contributing to a terrorist group and facilitating terrorism. In June 2008, Khawaja pleaded not guilty [JURIST report] to the charges, and his lawyer said the allegations were exaggerated and based on hearsay evidence that should have been excluded. In 2007, Canadian Federal Court Judge Richard Mosley refused to require the release of confidential evidence [JURIST report] against Khawaja, explaining that "disclosure of most of the information would be injurious to national security or to international relations." Khawaja was arrested [JURIST report] in March 2004.




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Samsung files trade commission complaint against Apple
Chris Morris on June 30, 2011 1:32 PM ET

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[JURIST] Samsung Electronics [corporate website; Bloomberg backgrounder] filed a complaint [USITC docket] with the United States International Trade Commission (USITC) [official website] on Tuesday seeking to prevent Apple [corporate website; Bloomberg backgrounder] from importing iPads and iPhones. Samsung claims Apple has violated five patents [Bloomberg report] related to smartphones and tablets. Samsung also filed a patent infringement suit [Bloomberg report] against Apple in the High Court in London on Thursday.

Apple filed suit last week [JURIST report] in the Seoul Central District Court claiming that the Samsung "Galaxy" line of products copies its iPhone and iPad technology. In April, Apple filed a similar suit against Samsung [JURIST report] in the US. Samsung countered [JURIST report] by filing patent infringement suits against Apple in three different countries, alleging that Apple had infringed its technology related to energy consumption and preventing data transmission errors. Though competitors, Samsung and Apple rely on each in business. Apple is the largest buyer of computer and phone chips, while Samsung is the world's largest manufacturer of those chips. In fact, after Apple's initial lawsuit against Samsung, Apple indicated a willingness to continue working with Samsung [Bangkok Post report] as a partner. This latest round of lawsuits comes just two weeks after Apple agreed to pay an undisclosed amount in a settlement with Nokia Corp. [corporate website; Bloomberg backgrounder] in a different dispute regarding touch screens and application stores.




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US Senate passes bill to ease presidential appointments
Julia Zebley on June 30, 2011 12:08 PM ET

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[JURIST] The US Senate [official website] passed the Presidential Appointment Efficiency and Streamlining Act [bill materials] by 79-20 on Wednesday. The bill exempts 170 minor executive posts and 2,800 posts in the US Public Health Service and National Oceanic and Atmospheric Administration Officer Corps [official websites] from requiring congressional confirmation. The bill also lessens the paperwork requirement for any nominee, streamlining the application forms. Senator Chuck Schumer (D-NY) [official website], one of the sponsors of the bill, said [press release] "It isn't often this body voluntarily takes steps to curb its own power. But for the good of our democracy, the Senate must become more efficient. This reform bill will help to break the gridlock that has dominated the Senate, allowing both parties to focus on driving an agenda designed to create jobs and reduce the deficit." It is unknown when the US House of Representatives [official website] will vote on the bill or if it will pass.

This has not been the only effort to streamline governmental red tape. Last year, President Barack Obama signed the Plain Writing Act [bill materials] into law, forcing any governmental "letter, publication, form, notice, or instruction" to be written in "plain writing": "writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience." It also charged the Plain Language Action and Information Network (PLAIN) [official website] with keeping the public abreast of communication changes.




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Former Taiwan president indicted on embezzlement charges
Maureen Cosgrove on June 30, 2011 11:54 AM ET

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[JURIST] Former Taiwanese President Lee Teng-hui was indicted on Thursday on charges of money laundering and embezzling money from a secret diplomatic fund. Lee and a top aide, Liu Tai-ying, were charged with embezzling $7.79 million [AP report] from a National Security Bureau [official website, in Chinese] fund to set up a think tank, Taiwan Research Institute [official website]. Prosecutors said Lee promised $10.5 million to the government of South Africa in 1994, wired the money to the Ministry of Foreign Affairs (MOFA) [official website], but reimbursed a fraction of the donation to the NSB. Lee, allegedly pocketing the balance, intended to amass funds and research for a private venture after leaving the presidency. Lee stepped down from the presidency after 12 years in 2000 and has denied taking money from the NSB.

Lee is the second former Taiwanese high-ranking official accused of embezzlement. Former president Chen Shui-bian [BBC profile; JURIST news archive] and his wife were accused of taking more than $20 million in bribes from banks and financial institutions that sought to protect themselves during the implementation of Chen's financial reform program. The pair were initially sentenced to life in prison in September 2009 after being convicted of embezzlement, receiving bribes, forgery and money laundering, but the sentences were ultimately reduced to 11 years [JURIST reports]. Chen was again indicted [JURIST report] shortly after the September sentence on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008 and formally indicted [JURIST report] the following month. He unsuccessfully appealed [JURIST report] his pretrial detention in January 2009. Chen served as president of Taiwan from 2000-2008.




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Florida judge enjoins state campaign finance matching funds law
Zach Zagger on June 30, 2011 11:23 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Florida [official website] struck down a campaign finance [JURIST news archive] law providing matching funds for campaigns choosing to use public financing. The decision closely follows the recent 5-4 Supreme Court [official website] decision issued earlier this week in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [Cornell LII backgrounder; JURIST report] striking down a similar Arizona campaign finance law on First Amendment [text] grounds. Florida Governor Rick Scott (R) [campaign website] filed the lawsuit during the Republican primary in which he was running against former attorney general Bill McCollum (R) [campaign website] who chose to use public financing. Scott argued the law violated his First Amendment rights [Miami Herald report] because it limited his campaign expenditures to $24.9 million since every dollar over would be matched in public funding for his opponent. Judge Robert Hinkle ruled that Florida must not enforce the law. He had previously granted a temporary injunction during the election preventing McCollum from receiving tax-payer funding. The law was a non-issue in the general election since Scott's competitor Alex Sink (D) [campaign website] also chose to forgo public financing. Scott spent over $70 million of his own money during the election.

In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett the Supreme Court found that an Arizona matching funds law was unconstitutional, reasoning that such a scheme is substantially burdensome on the privately-funded candidates because it harms them for exercising First Amendment rights to raise and/or spend their own money on their campaign. The court further said that it has never held that the state's interest in leveling the playing field is enough to suppress or alter political speech. Last month, the US Court of Appeals for the Eighth Circuit [official website] upheld [JURIST report] a Minnesota campaign finance law prohibiting direct contributions to candidates and affiliated entities. In April, a judge for the US District Court for the Western District of Wisconsin [official website] dismissed [JURIST report] two challenges to campaign financing schemes for Wisconsin Supreme Court elections brought by groups arguing the schemes violate their First Amendment rights.




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Former Khmer Rouge leader promises cooperation with genocide court
Maureen Cosgrove on June 30, 2011 11:17 AM ET

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[JURIST] Former Khmer Rouge head of state, Khieu Samphan [case profile, PDF], on Thursday promised to reveal information about of the communist Khmer Rouge regime [JURIST news archive; BBC backgrounder] that governed Cambodia during the 1970s. Samphan told the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] that he would cooperate with the tribunal [AP report] responsible for trying four former Khmer Rouge leaders. Samphan has repeatedly denied any involvement in the genocide, indicating in books and interviews that he was not responsible for the deaths of hundreds of thousands of Cambodian citizens. The ECCC began the initial hearings [materials; agenda, PDF; JURIST report] in the trial of the former Khmer Rouge leaders, including Samphan, Nuon Chea, who was second-in-command and the group's chief ideologist, ex-foreign minister Ieng Sary, and his wife, Ieng Thirith [case profiles, PDF], on Monday.

The Khmer Rouge have been blamed for the deaths of some 1.7 million people [PPU backgrounder] from starvation, disease, overwork and execution between 1975 and 1979. The UN-backed ECCC was established in 2001 to investigate and try those responsible for the Cambodian genocide that resulted in the deaths of approximately one-third of the Cambodian population. Khieu Samphan defended [JURIST report] the late Khmer Rouge dictator Pol Pot in his 2007 book, denying that he was responsible for genocide. Nuon Chea was arrested and charged in September 2007 and said that he was never in the position to order the deaths attributed to him, but that he would cooperate with the ECCC [JURIST reports]. Ieng Thirith and Ieng Sary were also arrested and charged in September 2007. The ECCC handed down its first and only conviction [JURIST report] last year against Kaing Guek Eav [TrialWatch profile], better known as "Duch", who was in charge of the notorious S-21 prison in Phnom Penh.




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UN rights chief criticizes China for not arresting Sudan president
Chris Morris on June 30, 2011 10:55 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] criticized China [AFP report] on Thursday for welcoming Sudanese President Omar al-Bashir [case materials; JURIST news archive] rather than arresting him to stand trial. Al-Bashir has been accused of crimes against humanity and genocide against Darfur [BBC backgrounder; JURIST news archive] tribal groups. Upon news of a scheduled visit with President Hu Jintao [BBC profile], China came under pressure [JURIST report] from the international community to arrest al-Bashir but did not respond. The International Criminal Court (ICC) [official website], which issued the arrest warrant, has no police or authority to enforce it without cooperation from governments. Pillay said she was disappointed with China's failure to arrest al-Bashir and that every nation has a duty and responsibility to bring justice to those indicted by the court. China has not commented on the visit, although al-Bashir reportedly met a "red carpet" reception on Wednesday.

China is not currently a party to the ICC's Rome Statute [text, PDF] and therefore has no obligation to the international community to arrest al-Bashir. China is, however, a permanent member of the UN Security Council [official website], which formally referred the Darfur case to Luis Moreno-Ocampo, lead prosecutor for the ICC. In joining the council, China agreed to cooperate with ICC decisions. The ICC charged al-Bashir [JURIST report] with three counts of genocide [warrant, PDF] in relation to the Darfur conflict, in addition to seven counts of war crimes and crimes against humanity that were filed against al-Bashir [JURIST report] in March 2009. The international community and human rights groups have urged various countries to arrest al-Bashir while he has been present inside their borders. Earlier this month, Amnesty International [advocacy website] called on Malaysia [JURIST report] to withdraw its invitation to al-Bashir and arrest him if he travels to the country. Similarly, the ICC urged Djibouti to arrest al-Bashir [JURIST report] in May. The ICC requested that Kenya arrest al-Bashir [JURIST report] during an October visit last year, his second visit to the country in the same year. Previously, al-Bashir had visited Kenya for the signing of the country's new constitution [JURIST report]. Following his visit, the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute for the violation in not arresting al-Bashir.




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Lebanon tribunal files indictment against Hezbollah members in Hariri case
Julia Zebley on June 30, 2011 10:49 AM ET

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[JURIST] The UN Special Tribunal for Lebanon (STL) [official website] on Thursday released [press release] to Lebanese authorities an indictment [JURIST report] with four arrest warrants in relation to the assassination of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. The warrants were issued for Mustafa Badreddine, Salim al-Ayyash, Hasan Aineysseh and Asad Sabra, who are alleged members [Lebanon Daily Star report] of Hezbollah [CFR backgrounder]. Lebanon has 30 days to arrest the suspects before the STL personally summons them and makes the indictment public. In a press conference [press release, in Arabic], Prime Minister Najib Mikati [official website] stated that "the indictments, from whatever source, [are] not sentences, and the charges need to contain compelling evidence beyond any doubt, and that every defendant is innocent until proven guilty." Many have interpreted [Al Jazeera report] this statement as an indication that Hezbollah members will not be arrested. Although Mikati was endorsed in the election by Hezbollah, he said he will not "take sides."

In February, the appeals chamber of the STL issued a unanimous ruling [summary, PDF; press release] on several procedural issues, including the definition of terrorism [JURIST report], in judicial proceedings. The STL began debate on the issue [JURIST report] to determine which laws to apply in the case against persons accused of involvement in the February 2005 truck bomb that killed Hariri and 22 other people. Using the Article 314 of the Lebanese Criminal Code [text, PDF] the court held that a conviction on the charge of terrorism requires proof of an act intended to spread terror and use of a means "liable to create a public danger," that the only requirement is that "the means used to carry out the terrorist attack be liable to create a common danger" and that the trial judges should be given latitude in determining whether the requirement was met after having considered the facts presented in the case. In August, Hezbollah submitted evidence to the STL [JURIST report] linking Israel with the bombing. The STL asked for the evidence [JURIST report] a week earlier after Hezbollah Secretary General Hassan Nasrallah [BBC profile] claimed to have proof that Israel was behind the bombing. Last February, the head of the STL reassured [JURIST report] the Lebanese public that the investigation is on track. When asked about the progress of the investigation into the death of Hariri, the head of the STL "underlined the fact that the Tribunal already has in place all the legal and administrative instruments necessary for its work, and is fully operational so that justice may be dispensed with complete independence and impartiality in accordance with the highest international standards." The STL was established in 2005 at the request of the Lebanese government to try those alleged to be connected to the bombing in which Hariri was killed by explosions detonated near his motorcade in Beirut.




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Rhode Island Senate approves civil union bill
Chris Morris on June 30, 2011 9:57 AM ET

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[JURIST] The Rhode Island Senate [official website] on Wednesday approved a same-sex civil union bill by a vote of 21-16 [press release]. The bill [2011 - H6103, PDF] is identical to a version of the bill passed in the House of Representatives [official website], and Governor Lincoln Chafee [official website] is expected to sign the bill into law. Modeled after similar legislation in Illinois, Delaware and Hawaii [JURIST reports], the bill defines a civil union as "a legal union between two individuals of the same sex" and affords same-sex couples the same rights and benefits as married couples. The legislation also includes a provision that allows religiously affiliated institutions, such as schools and hospitals, to ignore the legal status of a same-sex union for any reason. The provision has drawn criticism from several gay advocacy groups including Marriage Equality Rhode Island (MERI), Freedom to Marry, and the Gay & Lesbian Advocates & Defenders (GLAD) [advocacy websites]. Freedom to Marry and GLAD are two of many groups that signed a joint letter [text] to the governor calling for a veto of the current bill:
We greatly appreciate your strong support for the freedom to marry, and understand that you had previously expressed a willingness to sign a civil union bill as an incremental, if incomplete, step forward. The bill put forth by the legislature, however, would create onerous and discriminatory hurdles for same-sex couples that no other state has ever put in place.
The groups also suggested that the provision allowing certain groups to completely disregard the validity civil unions would permit discrimination, particularly with respect to recognizing a person's legal rights.

Governor Chafee, as well as advocacy groups, initially called [NPR report] for the legalization of same-sex marriage [JURIST news archive] but the House did not approve the necessary amendment [JURIST report]. Same-sex marriage continues to be a controversial and divisive issue throughout the US, although a recent poll [materials] suggests support for legalization is growing. New York recently became the nation's most populous state to pass a same-sex marriage bill [JURIST report] while the Minnesota Senate [official website] in May approved a voter referendum [JURIST report] to amend the constitution to ban same-sex marriage. In April, a Montana judge dismissed a lawsuit [JURIST report] that had called for the state to provide legal status to same-sex relationships. Also in April, the Indiana Senate [official website] overwhelmingly approved [JURIST report] an amendment to the state constitution that would ban same-sex marriage or any "substantially similar" status, and the Wyoming Senate [official website] in February approved a bill that would void in Wyoming any same-sex marriages and civil unions [JURIST report] performed in other jurisdictions. In addition to being legal in New York, same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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New Jersey legislature passes ban on shale gas 'fracking'
Zach Zagger on June 30, 2011 9:47 AM ET

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[JURIST] The New Jersey Legislature [official website] Tuesday passed [materials] a bill [S 2576] to completely ban hydraulic fracturing [EPA backgrounder], or "fracking," a controversial technique used to release natural shale gas. The Senate passed the bill 33-1 and then it passed the Assembly later in the day 58-11 with 8 abstentions. The bill now goes to New Jersey Governor Chris Christie (R) [official website] to sign or veto it. If Christie signs the bill into law, it will make New Jersey the first state to impose a complete statewide ban on hydraulic fracturing. He has not said yet whether he plans to sign. Still, the bill is largely symbolic since experts say New Jersey only sits over a small portion [WSJ report] of shale gas, unlike its neighbors New York and Pennsylvania. Hydraulic fracturing is a process in which water, sand and chemicals are pumped into the ground to create fractures in rocks which allows trapped gas and oil to come to surface. Environmental and health concerns associated with hydraulic fracturing include contamination of ground water, migration of gases and hydraulic fracturing chemicals to the surface and the potential mishandling of waste.

Fracking, has become a controversial issue as it is implemented in the US and around the world. Earlier this month, New York Attorney General Eric Schneiderman [official profile] filed a lawsuit against the US government to compel several federal agencies to comply with National Environmental Policy Act (NEPA) [EPA materials] by investigating the environmental impact of fracking and making the findings available to the public prior to adopting a proposal by the Delaware River Basin Commission (DRBC) [advocacy website] authorizing natural gas development in the region. In May, France's lower house, the National Assembly [official website, in French], approved a bill [TA Bill No. 658, materials, in French; JURIST report] to prohibit the drilling of gas and oil through hydraulic fracturing and to repeal hydraulic fracturing licenses granted to companies.




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DOJ appeals bankruptcy ruling striking down federal same-sex marriage ban
Julia Zebley on June 30, 2011 9:18 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed an appeal in the US Court of Appeals for the Ninth Circuit [official website] on Monday contesting a bankruptcy court ruling [opinion, PDF; JURIST report] that the Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional. DOMA is a federal law barring same-sex marriage [JURIST news archive], even if it is legalized in a state. The DOJ previously declared [JURIST report] that it would no longer defend the constitutionality [press release] of Section 3 of DOMA, which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Assistant US Trustee [official website] Jill Sturtevant, who had earlier attempted to dismiss [text] the joint filing, stated [AP report] that they were appealing to give Congress a chance to "weigh in" on the constitutionality of DOMA. Earlier this year, House Speaker John Boehner (R-OH) [official website] announced [JURIST report] that he was launching a legal advisory group to defend DOMA [press release]. Boehner declined to defend DOMA in this case, deciding it was not worth the resources to overturn a bankruptcy decision. In an event for gay pride on Wednesday night, President Barack Obama reinforced that the DOJ was not defending DOMA in court [ABC News] and that he had fulfilled every promise he made to the LGBT community.

Congressional Democrats introduced [JURIST report] legislation [text] in March to repeal DOMA after Obama pledged to no longer defend it, and Boehner said the House would independently defend the law. Attorney General Eric Holder [official profile] acknowledged that the announcement marks a change in policy for the DOJ and the Obama administration, but noted that the change was necessary due to cases pending in the US Court of Appeals for the Second Circuit. Holder explained that when the DOJ previously defended DOMA it had done so in jurisdictions with binding precedent stating that a permissive standard of review was applicable to laws dealing with sexual orientation. 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 under the Fifth Amendment and State Sovereignty under the Tenth Amendment [text].




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China suppressing lawyers pursuing human rights cases: AI
Maureen Cosgrove on June 30, 2011 9:03 AM ET

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[JURIST] The Chinese government has implemented measures aimed at suppressing lawyers pursuing human rights cases [press release], Amnesty International (AI) [advocacy website] reported [text, PDF] Thursday. The report, entitled "Against the Law: Crackdown on China's Human Rights Lawyers Deepens," presents evidence that human rights lawyers have increasingly had their licenses revoked or suspended and have faced harassment and torture in some cases. The government has reportedly targeted lawyers who take on land rights conflicts and freedom of religion and expression issues. Chinese lawyers and law firms undergo "annual assessments" which, the government claims, are conducted by independent lawyers associations. AI contends, however, that the lawyers defending human rights disproportionately fail the assessment and expressed general concern with the treatment of human rights lawyers in China:
Amnesty International is gravely concerned about the developments described in this report. These show that the Chinese authorities are not only failing to ensure protection for human rights lawyers and others seeking to provide legal services, but are actively undermining their work through legislative, administrative, and practical measures. If lawyers and legal workers are rendered incapable of challenging human rights violations committed by those acting in an official capacity, there can be no effective protection of human rights in China.
The report included recommendations for the Chinese government, including calls to end the harassment and persecution of lawyers, recognize that lawyers are independent of the state, abolish the annual assessment and review current domestic legislation in order to "eliminate the obstructions they impose on the work of lawyers in order to fully implement international standards on the role of lawyers."

The 2011 report is an update to AI's 2009 report [text, PDF] also evaluating China's rule of law and the treatment of legal professionals. China has had a well-known struggle with international criticism of its human rights record [JURIST news archive]. In January, Human Rights Watch (HRW) [advocacy website] declared in a report [text; JURIST report] that China has failed to achieve the goals it set out in its first national human rights plan. In May 2010, two Chinese human rights lawyers who have represented Falun Gong [group website; BBC backgrounder] defendants were permanently disbarred [Tang decision, Liu decision, in Chinese; JURIST report] after being accused of disrupting courtrooms. AI criticized the disbarment hearing [press release] calling it "absurd" and claiming that "[g]overnment authorities in China continue to harass and disrupt the work of lawyers taking politically sensitive cases." In April 2009, the Information Office of the State Council [official website] published the National Human Rights Action Plan of China (NHRAP) [JURIST report], which aimed to protect ethnic minorities, promote gender equality, guarantee suspects the right to an impartial trial, and prohibit illegal detentions and the use of torture to extract confessions from suspects. In February 2009, the Chinese delegation to the UN Human Rights Council (UNHRC) [official website] defended [JURIST report] China's human rights record while presenting a report [text, PDF] in compliance with the UNHRC's Universal Periodic Review (UPR) [official website] process. Ambassador Li Baodong said that China has been taking steps to improve its legal system, promote democracy, and encourage non-governmental organizations.




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Sixth Circuit finds health care reform law's individual mandate constitutional
Erin Bock on June 30, 2011 7:32 AM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Wednesday found [opinion, PDF] the individual mandate provision of the new Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST news archive] constitutional. The Thomas More Law Center (TMLC) [advocacy website], joined by four individuals, challenged the individual mandate provision of PPACA, arguing that it unconstitutionally compels the purchase of health insurance. The plaintiffs sought a declaration that Congress lacks authority under the Commerce Clause [Cornell LII backgrounder] to pass such a provision or, in the alternative, that the penalty for not purchasing insurance is an unconstitutional tax. Initially, the court determined that the penalty is not a tax for purposes of the Internal Revenue Code [text]. The Court went on to state that the health care market "is large and is inextricably linked to interstate commerce" and that those who choose to not purchase health insurance substantially affect interstate commerce through cost-shifting that drives up insurance premiums. As a result, the Court determined that Congress did not violate the Commerce Clause, finding it had a rational basis for the individual mandate because "the provision regulates active participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity." The US Department of Justice (DOJ) [official website], which argued on behalf of the government, issued a statement [text] welcoming the ruling and pledging that the DOJ will continue to defend PPACA. The statement went on to compare PPACA to legislative challenges that failed in the past, such as the Social Security Act and Civil Rights Act and finally stated, "[w]e believe these challenges to health reform will also fail." The TMLC plans to appeal [AP report] to the Supreme Court [official website].

Similar cases regarding the constitutionality of PPACA are being heard in federal courts across the nation. Last week, a three-judge panel of the US Court of Appeals for the Third Circuit [official website] heard arguments [JURIST report] regarding the constitutionality of the individual mandate. Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] heard arguments [JURIST report] regarding the constitutionality of the individual mandate. The appeal was brought by the DOJ after the US District Court for the Northern District of Florida [official website] struck down the entire health care law after it determined that the individual mandate exceeds Congress' authority [JURIST report] under the Commerce Clause. Also this month, the US Court of Appeals for the Fourth Circuit [official website] decided it can rule on two challenges to PPACA after the court requested briefs [JURIST report] from all parties on whether the Anti-Injunction Act (AIA) [text], which prevents injunctions against taxes before the tax is imposed, would bar review of PPACA until it is implemented. The Fourth Circuit already heard arguments [JURIST report] in May to resolve a split decision between the US District Court for the Eastern District of Virginia ruling against the individual mandate and the Western District of Virginia dismissing a challenge [JURIST reports].




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Bahrain king promises independent investigation of protest crimes
Maureen Cosgrove on June 29, 2011 2:32 PM ET

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[JURIST] Bahraini King Hamad bin Isa Al Khalifa [official website] announced on Wednesday that an independent commission will investigate human rights violations related to the country's pro-democracy protests. During a televised speech [transcript], Khalifa indicated that he had ordered a committee under the Chairmanship of the Deputy Prime Minister to look into abuses that took place in Bahrain [BBC profile] earlier this year. Khalifa said that the country had already begun to move forward from the violence, but maintained that the commission would seek to uncover who should be held responsible:
[W]e also need to look back and to determine exactly what happened in February and March, and to consider the reactions to those events. There were victims of the violence that took place. They must not be forgotten. There have been accusations and counter-accusations about the origins of the violence. A lack of confidence has prevailed, and disagreements have led to conflicting beliefs about events, even if such beliefs are founded only on rumors.
The commission, Khalifa said, would be composed of international human rights law experts recommended by the UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] and other international human rights organizations.

Earlier this month, the OHCHR announced [press release; JURIST report] that Bahrain has agreed to permit a UN commission to investigate human rights violations related to protests. In April, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests. Six opposition leaders were arrested [JURIST report] in March after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana. Days earlier, Khalifa 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 [JURIST report] under articles 36 and 123 of the Bahraini Constitution [text, PDF]. 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.




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Oman court sentences protesters to 5 years in prison
Julia Zebley on June 29, 2011 1:52 PM ET

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[JURIST] Oman's Misdemeanour Court of First Instance in Muscat sentenced 13 protesters [Times of Oman report] on Wednesday, handing five-year sentences to seven of the activists. Those seven were charged with shutting down a government organization. Six others were given fines and between three and four-month sentences for blocking roads and assaulting government employees. An additional 55 [Reuters Africa] were sentenced for vandalism the day before. The indicted were arrested after protests in February [Al-Jazeera report] where at least two were killed. Activists were reportedly demanding a higher living standard, more media access, and an end to government corruption.

The protests in Sohar were prompted by the recent wave of protests in the Middle East. UN High Commissioner for Human Rights Navi Pillay [official profile] applauded [JURIST report] the establishment of national human rights institutions (NHRIs) [official website] in Oman last year, noting their "growing effectiveness" in promoting human rights. The 2010 Failed States Index [index; FP special report] released in 2010 declared Oman one of the most stable countries in the world [JURIST report]. Oman was also praised by the US [JURIST report] in 2009 for enacting legislation to improve labor conditions. Despite Oman's reputation for being a peaceful state, protesters were sentenced to 7-20 years in prison in 2005 [JURIST report].




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Indiana to appeal ruling on planned parenthood funding
Zach Zagger on June 29, 2011 11:30 AM ET

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[JURIST] Indiana Attorney General Greg Zoeller [official website] filed a notice of appeal [text, PDF; docketing statement, PDF] Tuesday challenging a preliminary injunction blocking parts of a state law [HEA 1210, text] denying that medicaid funds go to Planned Parenthood of Indiana (PPIN) [advocacy website]. The state is challenging a decision in the US District Court for the Southern District of Indiana [official website] by Judge Tanya Walton Pratt that prevents application of the portion of the law that bans contracts between state agencies and any entity that performs abortions [JURIST news archive] or maintains a facility where abortions are performed. The appeal seeks to determine whether the preliminary injunction may continue before the case proceeds. PPIN and the American Civil Liberties Union (ACLU) [advocacy website] filed the challenge seeking a permanent injunction of the law. Zoeller noted [press release] that the state is already appealing the administrative decision made earlier this month by Donald Berwick, administrator of the Centers for Medicare & Medicaid Services (CMMS) [official website], to deny approval of the law [JURIST report]. He sent a letter to the Indiana state agency saying states have the ability to assign the qualified provider status, but the law violates § 1902(a)(23) of the Social Security Act [text] because it prevents Medicaid beneficiaries from receiving services from certain providers for reasons unrelated to the providers qualifications to provide those services.

The Obama administration has taken a stance against the Indiana law. In addition to the CMMS denial, the US Department of Justice (DOJ) [official website] filed a brief urging the court to grant an injunction [JURIST report] to stop the enforcement of the law. The ban includes disbursement of grant money, including federal Medicare funds, a provision PPIN claims is not legal under the federal Medicaid Act's "freedom of choice" provision, which allows states to disallow Medicare funding for medical providers based on deficiencies in quality of service. Before granting the preliminary injunction, the judge denied a request for a restraining order [JURIST report] to block implementation of the law.




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ICTR transfers case of former pastor to Rwanda court
Maureen Cosgrove on June 29, 2011 11:22 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] on Tuesday transferred the case [press release] of former Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile; case materials] to the Republic of Rwanda to be tried in the Rwandan national court system under Rule 11 bis, which authorizes the transfer of cases to appropriate national jurisdictions. Though the ICTR has never referred a case to a Rwanda court, the Referral Chamber determined that Rwanda was capable of accepting and prosecuting Uwinkindi's case:
Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the ICTR adhering to internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments. In particular, the Chamber found that the issues which concerned previous Referral Chambers, namely the availability of witnesses and their protection, had been addressed to some degree in the intervening period.
As a precuationary measure, the Referral Chamber requested that the African Commission on Human and Peoples' Rights (ACHPR) [official website] be appointed to oversee the trial and present any issues to the ICTR President as they arise. Uwinkindi pleaded not guilty [press release] in July 2010 to charges of genocide and crimes against humanity relating to the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Uwinkindi was indicted [indictment, PDF] by the ICTR in 2001 and has been charged with genocide, conspiracy to commit genocide and extermination as a crime against humanity. The indictment alleges that Uwinkindi collaborated with the extremist National Republican Movement for Democracy and Development (MRND) party in order to kill Tutsis. He allegedly led a group of Hutus to look for and kill a group of Tutsi settlers and conspired with members of the militia to kill Tutsis who sought protection in the church where he was the pastor. According to the indictment, approximately 2,000 bodies were found near the church where the violence occurred. Uwinkindi had been one of the ICTR's most wanted suspects, with a $5 million reward being offered [BBC report] for information leading to his capture. He was apprehended [JURIST report] by Ugandan authorities and transferred to the ICTR in Arusha, Tanzania.

Former Chief Prosecutor of the ICTR Hassan Bubacar Jallow [JURIST news archive] filed new applications [press release; JURIST report] in November 2010 for the referral of three cases for trial in Rwanda, including those of Uwinkindi, Fulgence Kayishema [case materials; JURIST report] and Charles Sikubwabo [case materials]. In September 2010, the ICTR transferred [JURIST report] the cases of 25 suspects to Rwandan authorities. The suspects, who have been investigated but not yet indicted by the ICTR, are believed to be in hiding abroad. The transfers are a part of the strategy intended to finish [completion strategy text, PDF] the court's trial work by 2011. Rwandan Prosecutor General Martin Ngoga told the UN Security Council last year that the decisions by the ICTR not to transfer pending cases to Rwandan jurisdiction, including genocide suspects Jean-Baptiste Gatete and Yussuf Munyakazi [case materials] undermines judicial reforms [JURIST report] and hinders national reconciliation. JURIST Guest Columnist and former Managing Editor Ingrid Burke, who has personal experience at the ICTR, argues that some cases ought to be referred to Rwandan courts [JURIST op-ed], suggesting that doing so "is in the best interest of both the Rwandan judiciary's stability and the benefit of international criminal law in the future."




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Gay rights groups sue New Jersey for right to marry
Julia Zebley on June 29, 2011 10:17 AM ET

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[JURIST] Gay rights groups Lambda Legal and Garden State Equality [advocacy websites] filed a lawsuit [complaint text, PDF; case materials] on Wednesday to force the state of New Jersey to recognize and legalize same-sex marriage as opposed to its current Civil Unions Law [text, PDF]. The suit was filed in the Mercer County Superior Court of New Jersey on behalf of eight same-sex couples [press release] who have had civil unions and are seeking declaratory and injunctive relief due to continued discrimination.
Today, New Jersey shunts lesbian and gay couples into the novel and inferior status of "civil unions," while reserving civil marriage only for heterosexual couples. As the Plaintiff's experience shows, the relegation of lesbian and gay couples to civil unions, and their exclusion from civil marriage, and thereby from the legal status of "marriage" and "spouse," violates the guarantee of equal protection under Article 1, Paragraph 1 of the New Jersey Constitution of 1947. Specifically, the separate and inherently unequal statutory scheme singles out lesbian and gay men for inferior treatment on the basis of their sexual orientation and sex, and also has a profoundly stigmatizing effect on them, their children, and on other lesbian and gay men New Jerseyans. As the Supreme Court of New Jersey made clear, the equal protection guarantee forbids "the unequal dispensation of rights and benefits to committed same-sex partners." This exclusion also violates the Fourteenth Amendment to the Constitution of the United States.
Lamda Legal filed a similar suit last year [JURIST report], but the New Jersey Supreme Court [official website] declined to hear the case, holding that it must first be heard in the lower courts. In 2009, a superior court judged allowed a divorce to proceed between a same-sex couple [JURIST report], but cautioned that this would not extend to legalizing same-sex marriage in New Jersey through the courts.

Earlier this week, New Jersey Governor Chris Christie [official website] reiterated that he will not sign a gay marriage bill into law [Bloomberg report]. Christie was questioned on his reaction to New York Governor Andrew Cuomo (D) [official website] signing legislation [A8354-2011 materials] allowing same-sex couples to marry [JURIST report]. With the legislation, New York becomes the seventh US jurisdiction to allow same-sex marriage. Same-sex marriage is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. Civil unions or domestic partnerships are currently legal in Maine, Illinois, Delaware, Hawaii, California, Wisconsin, Nevada, Oregon and Washington and await ratification in Rhode Island [JURIST reports].




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Ohio lawmakers approve bill prohibiting abortion after fetal heartbeat detection
Maureen Cosgrove on June 29, 2011 10:14 AM ET

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[JURIST] The Ohio House of Representatives [official website] voted 54-43 on Tuesday to approve legislation [HB 125] that would prohibit abortions after a fetal heartbeat is detectable, which could occur as early as six weeks into the pregnancy. The "heartbeat bill" provides no exceptions [Reuters report] for rape, incest or the life or health of the mother. The law effectively challenges the US Supreme Court [official website] decision in Roe v. Wade [opinion] which upheld a woman's right to an abortion until the fetus is "viable," usually at 22-24 weeks. Ohio Right to Life (ORTL) [advocacy website] does not support any effort to pass the bill, saying that the law would likely be deemed unconstitutional and facing a federal lawsuit would be costly to taxpayers. Marshall Pitchford, Chairman of the ORTL Board of Trustees, expressed his concerns [statement, PDF] with the bill:
As excitement and support continues to build for our legislative agenda, we are reminded of our responsibility as the Ohio Right to Life Society, the state's largest and longest serving pro life organization, to advise our elected officials of other initiatives that come before them which will have negative effects and unintended consequences. H.B. 125, the so-called "Heartbeat Bill" is one such measure which will do just that.
The House passed two other abortion-related bills on Tuesday. HB 78 [text], which was already passed [JURIST report] in the Ohio Senate [official website], bans late-term abortions after 20 weeks if a doctor determines that the fetus is viable outside the womb. HB 79 [text] prohibits qualified health plans from providing coverage for non-therapeutic abortions.

Ohio is one of many states to introduce more restrictive abortion regulations in recent months. The Iowa House of Representatives [official website] voted in June in favor of a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy {JURIST report], making it the most restrictive abortion law in the country. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy websites] filed a lawsuit challenging a South Dakota law [JURIST reports] requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton [official website] vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry [official website] signed into law a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Oklahoma, Kansas and Idaho [JURIST reports].




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Ivory Coast signs accord allowing ICC investigation to proceed
Julia Zebley on June 29, 2011 9:09 AM ET

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[JURIST] Ivory Coast [BBC backgrounder; ICC case materials] Justice Minister Jeannot Ahoussou Kouadio signed an agreement with the International Criminal Court (ICC) [official website] on Tuesday, allowing an investigation into political violence to proceed and pledging cooperation with the ICC. As the Ivory Coast is not a member state of the ICC because it is not a signatory of the Rome Statute [text, PDF], the ICC can only investigate with the Ivory Coast's express permission. Chief Prosecutor Luis Moreno-Ocampo officially requested permission from ICC judges last week [JURIST report] to begin investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed in post-election violence [JURIST news archive] since last November. This followed a request by President Alassane Ouattara [BBC profile] for the ICC to launch an investigation [JURIST report]. Despite Ouattara requesting the investigation, the ICC will be investigating both sides of the election violence [Bloomberg report], including violence fomented by Ouattara's administration.

The Ivory Coast announced earlier this month it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of ousted leader Laurent Gbagbo [BBC profile] earlier this month. In April, Human Rights Watch [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Rights group sues to block Kansas abortion licensing laws
Maureen Cosgrove on June 29, 2011 9:02 AM ET

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[JURIST] The Center for Reproductive Rights (CRR) [advocacy website] on Tuesday filed a federal lawsuit [press release] challenging licensing and regulation laws for doctors who provide abortions [JURIST news archive] in Kansas. The suit [case backgrounder], filed on behalf of two doctors, alleges that regulations issued by the Kansas Department of Health [official website] were intended to shut down the only abortion providers in the state. According to the plaintiffs, the department of health issued the new regulations without giving proper notice or opportunity to be heard, imposing review and compliance deadlines in mid-June for the regulation which is set to take effect on July 1. The regulations would also force the providers to rebuild their offices to comply with the new, stringent standards. Nancy Northup, president of the CRR, condemned the Kansas regulations:
Between the rigid and unnecessary building standards and the absurd deadlines, this licensing process is a complete sham. Our clients have a long record of providing safe and high-quality OB/GYN care, including abortion services, to women over the last thirty years. These regulations have nothing to do with safety standards, and everything to do with an aggressive anti-choice government trying to shut down abortion providers.
The plaintiffs are challenging the regulations on due process grounds and further assert that the laws create an undue burden on patients seeking abortions.

The CRR filed a challenge [complaint, PDF; JURIST report] earlier this month to the newly signed Texas law requiring a sonogram be done before a woman can have an abortion. The CRR filed the lawsuit on behalf of a class of physicians who perform abortions claiming that the act is unconstitutional because it "profoundly intrudes on the practice of medicine, forces physicians to deliver ideological speech to patients, and treats women as less than fully competent adults." Also this month, the Iowa House passed [JURIST report] what would be the most restrictive law yet, effectively banning abortions after 18 weeks of pregnancy. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Kansas and Idaho [JURIST reports].




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Bank of America to pay $8.5 billion to settle bad mortgage-backed securities claims
Zach Zagger on June 29, 2011 8:57 AM ET

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[JURIST] Bank of America (BOA) [corporate website] announced Wednesday that it has agreed to pay $8.5 billion [press release] to settle claims that it sold bad securities contributing to the housing market collapse. The securities, called first-lien residential mortgage-backed securitization, were issued by the BOA unit Countrywide Financial Corporation, which it purchased [AP report] for $4 billion in 2008. The settlement is only a small portion of the original principal balance of $424 billion covering 530 trusts with The Bank of New York Mellon as trustee. The settlement also includes an additional $5.5 billion in mortgage-related charges and BOA said it will also end up paying $2.6 billion in goodwill expenses. Shares of BOA jumped Wednesday morning before the market opened as investors were more confident that BOA's looming liability was being settled. Still, a court must approve the settlement.

BOA has recently been the target of several lawsuits over its business practices. BOA was dismissed in April from a lawsuit filed against Countrywide Financial [JURIST reports] last January, The plaintiffs argued that they had invested hundreds of millions of dollars between 2005 and 2007 believing the purchases of mortgage-backed securities to be "conservative, low-risk investments." The suit claims that Countrywide "recklessly" misrepresented the stability of the investments and failed to adhere to its stated underwriting and credit analysis procedures, leading the credit ratings of many of the securities to fall significantly. Last month, a federal court preliminarily approved [JURIST report] a class action settlement for $410 million between BOA and customers claiming they were illegally charged overdraft fees. BOA is among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009.




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State Department legal adviser: Obama acting lawfully in Libya
Maureen Cosgrove on June 28, 2011 3:16 PM ET

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[JURIST] US State Department (DOS) [official website] legal adviser Harold Koh [academic profile] on Tuesday told the Senate Foreign Relations Committee (SFRC) [official website] that President Barack Obama is acting within the law [testimony materials] with respect to US military operations in Libya [JURIST backgrounder]. Koh testified that Obama's conduct is consistent with the Constitution, the 1973 War Powers Resolution [50 USC § 1541 et seq.] and international law. Specifically, Koh provided four factors suggesting the current situation in Libya does not amount to a "hostility" requiring Congressional authorization or automatic withdrawal after 60 days pursuant to the War Powers Resolution. First, the mission is limited in that US forces are merely providing support in the civilian protection operation, even though NATO [official website] forces are engaging in more aggressive military conduct in Libya. Second, US presence in Libya has not resulted in significant US casualties, indicating that the confrontations are not hostile. The operation appears to lack the risk of escalation, as prolonged combat is unlikely and geographical scope is narrow. Finally, Koh pointed out that US presence in Libya is far from "full military engagement." Koh asked the committee to approve a bipartisan resolution [SJ RES 20] to provide express Congressional authorization for continued operations in Libya.

The US House of Representatives [official website] in two votes last week sent contradictory messages [JURIST report] over authorization of US military operations in Libya, voting down 123-295 [roll call vote] a resolution [HJ RES 68] that would have authorized further operations in Libya, and later voting down 180-238 [roll call vote] a measure [HR 2278] that would have defunded the operations, save for rescue and intelligence efforts to assist NATO. Obama disagrees with certain members of Congress regarding his legal authority to continue military operations in Libya. Obama's position is that he is not in violation [JURIST report] of the War Powers Resolution. His office maintains that US activities in Libya do not amount to "hostilities" because the US is only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. But earlier this week, it was reported that Obama came to this conclusion overriding the legal interpretations [JURIST report] of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites]. Jordan Paust [academic profile] of the University of Houston Law Center has argued [JURIST op-ed] that Obama is not violating the War Powers Resolution because the resolution was meant to limit only his authority as Commander-In-Chief. In this case, Obama is acting pursuant to his Executive authority under Article II [text]. Paust argues: "given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President's independent authority as Commander-in-Chief."




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ICC prosecutor urges Gaddafi aides to implement arrest warrant
Maureen Cosgrove on June 28, 2011 2:46 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] on Tuesday urged [press release] personal aides of Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] to implement the arrest warrants issued Monday [JURIST report]. Moreno-Ocampo called on the aides to arrest Gaddafi, his son Saif al-Islam Gaddafi, the "de facto Prime Minister," and his brother-in-law Abdullah al-Sanussi [warrants, PDF], the head of intelligence, for alleged crimes against the people of Libya to quell the revolt that began last February, saying the aides could be "part of the solution." Though Libya is not a signatory of the Rome Statute [text] granting the ICC its jurisdiction, Moreno-Ocampo said, "Libya has to comply with UN Security Council Resolution 1970, which specifically called on Libya to "cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.'" Libya has rejected the warrants [Pakistan Times report], claiming the ICC is a vehicle for European foreign policy. Libyan citizens celebrated [Guardian report] the ICC's announcement that it had issued the arrest warrants.

Last week, Moreno-Ocampo presented the arrest warrants' supporting materials to Pre-Trial Chamber. He said his office had gathered "direct evidence" [JURIST report] that shows Gaddafi personally ordered attacks on civilian protestors and that his forces used live ammunition on crowds, attacked civilians in their homes, used heavy weapons against people in funeral processions and placed snipers to shoot those leaving mosques after prayer services. Moreno-Ocampo announced [JURIST report] last month that his office was pursuing arrest warrants against Gaddafi and the two others in his "inner circle." He said Saif al-Islam was acting as Gaddafi's "de facto Prime Minister" and called al-Sanussi Gaddafi's "right-hand man" and "executioner." At that time, Moreno-Ocampo said his office was almost prepared for trial, having collected quality testimony from some who have fled Libya. There have been numerous allegations of war crimes and human rights violations over the Libyan revolt which has persisted since February. Earlier this month, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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North Carolina governor vetoes abortion waiting period bill
Jaclyn Belczyk on June 28, 2011 2:09 PM ET

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[JURIST] North Carolina Governor Beverly Perdue [official website] vetoed [press release] legislation [HB 854 materials] Monday that would have required a 24-hour waiting period before an abortion [JURIST news archive]. The "Woman's Right to Know Act" would also have required women seeking an abortion to view an ultrasound of the fetus prior to the procedure. Supporters argued that the bill was necessary in order for women to be fully informed about their decision, but Perdue disagreed, calling it "a dangerous intrusion into the confidential relationship that exists between women and their doctors." Vetoing the legislation, Perdue issued the following statement:
The bill contains provisions that are the most extreme in the nation in terms of interfering with that relationship. Physicians must be free to advise and treat their patients based on their medical knowledge and expertise and not have their advice overridden by elected officials seeking to impose their own ideological agenda on others.
The legislation passed the House 71-48 and the Senate 29-20. Republican leaders have indicated that they may try to obtain the three-fifths majority necessary to override the governor's veto [Charlotte Observer report].

Several other state legislatures have acted recently to limit abortion rights. Both Texas and Florida [JURIST reports] have recently passed bills requiring ultrasounds before abortions. Earlier this month, the Center for Reproductive Rights (CRR) [advocacy website] filed a lawsuit challenging the Texas law [JURIST report]. In March, South Dakota passed a law requiring a three-day waiting period [JURIST report] before an abortion—the longest waiting period in the country. That law is also facing a court challenge [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Kansas and Idaho [JURIST reports].




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Texas legislature passes TSA anti-groping law
Maureen Cosgrove on June 28, 2011 12:57 PM ET

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[JURIST] The Texas legislature on Monday passed a pair of bills that criminalize enhanced airport security pat-downs if they involve touching a passenger's "private" areas. The Texas House of Representatives [official website] passed HB 41 [materials] while the Senate [official website] simultaneously passed SB 29 [materials], both seeking to reduce "groping" during airport security screening processes. A person acting in violation of the law could be charged with a Class A misdemeanor [Reuters report], which is punishable by up to a year in jail and a $4,000 fine. The bill, however, gives security officials a defense [Huffington Post report] to prosecution if the officials act with "reasonable suspicion" that the search is necessary, a less rigid standard than the "probable cause" standard in the original version of the bill. Texas House Speaker Joe Straus expressed his approval [press release] of the bill's passage, which "lets Texans travel safely, protects the privacy of citizens, and enables law enforcement do its job." US Attorney for the Western District of Texas John Murphy [official website] warned Texas lawmakers that the bill would be challenged because it impinges on the duties of the Transportation Security Administration (TSA) [official website], a federal agency enlisted to ensure traveler safety. Following revisions, a final vote from the House is required before the bill makes its way to Governor Rick Perry.

The TSA announced a policy change [USA Today report] in June that seeks to reduce the number of invasive pat-downs of children under age 12. Perry commended the TSA [press release] for making the change, indicating that "Texas will continue seeking more common-sense approaches to TSA security measures." The TSA has faced criticism for other tight security measures. In April 2010, a group of more than 30 privacy and civil liberty groups asked [petition, PDF; JURIST report] the Department of Homeland Security (DHS) [official website] to suspend the full body scanner [TSA backgrounder] program being implemented by the TSA. The body scanners were introduced in part as a response to the failed US bombing attempt by Umar Farouk Abdulmutallab [Telegraph profile; JURIST news archive] on Northwest Airlines Flight 253 from Amsterdam to Detroit on Christmas Day. The attempted attack prompted Obama to announce tighter security measures, which civil rights groups opposed [JURIST reports] as a pretext to racial profiling.




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Supreme Court to hear another Confrontation Clause case on admissibility of lab tests
Zach Zagger on June 28, 2011 11:45 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari in two additional cases Tuesday including a case similar to one decided last week involving whether the Confrontation Clause [Cornell LII backgrounder] case blocks the admissibility of lab test data when the analyst who conducted the tests is not called to testify. In Williams v. Illinois [docket; cert. petition, PDF] the court will decide whether a state rule of evidence violates the Confrontation Clause when it permits an expert witness to testify about the results of a DNA test performed at a private laboratory, when the analysts who performed the tests do not testify, and the expert witness has not had an opportunity to confront the actual analysts. Sandy Williams was convicted of sexual assault. At trial, an expert for the prosecution testified that the DNA test results of samples from the sexual assault kit, conducted by a private company, matched the profile for Williams contained in the police crimes database. The test results were not actually entered into evidence, but the results were presented through the testimony of the expert witness, over Williams' objections. On appeal, the Illinois Supreme Court [official website] upheld the rule because the DNA test results were not being offered for the truth of the the tests, but for the non-hearsay purpose of providing a background for the expert witness's conclusions. Last week, the Supreme Court ruled in Bullcoming v. New Mexico [Cornell LII backgrounder; JURIST report] that the Confrontation Clause does not allow laboratory reports to be entered into evidence against a defendant without the testimony of the analyst who personally observed the test and certified the report.

The Supreme Court will also hear Sackett v. Environmental Protection Agency [docket; cert. petition, PDF] in which petitioners are challenging whether the Environmental Protection Agency (EPA) [official website] can enforce a compliance order issued without any opportunity to contest the order. The Sacketts own land near Priest Lake, Idaho on which they intended to build a house. After purchasing the property and obtaining local permits, they began to grade the land for construction of a house. They received an EPA Administrative Compliance Order that said the grading of the land was in violation of the Clean Water Act (CWA) [text, PDF] and imposed harsh civil penalties for non-compliance. The Sacketts disagree that their property is a wetland under the meaning of the CWA. The case raises the issue of whether the CWA precludes pre-enforcement judicial review, and if so, whether that violates the petitioner's Due Process [Cornell LII backgrounder] rights. The US Court of Appeals for the Ninth Circuit [official website] upheld [opinion, PDF] the dismissal of the suit.




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Convicted ex-Blackwater contractor sentenced to 2.5 years in prison for manslaughter
Zach Zagger on June 28, 2011 10:26 AM ET

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[JURIST] A former contractor for Blackwater [JURIST news archive], now known as Xe Services [corporate website], was sentenced [press release] Monday to two-and-a-half years in prison for the 2009 shooting of an unarmed Afghan civilian in Kabul. Justin Cannon was convicted in the US District Court for the Eastern District of Virginia in Norfolk, VA in March, along with Christopher Drotleff, for involuntary manslaughter. Drotleff was sentenced to 37 months in prison earlier this month. They are the first contractors [Virginia-Pilot report] for the North Carolina-based company to be sentenced to prison for killing a civilian in a war zone. Prosecutors alleged that the two men left their military base without authorization while intoxicated 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 and that they were not drinking. They were facing a maximum sentence of eight years in prison. Both men were only convicted on the involuntary manslaughter count for the death of the driver, while being acquitted of two counts of second-degree murder, assault resulting in serious bodily injury to the passenger and firearms offenses. US District Judge Robert Doumar was unsympathetic to the two men's argument that they were operating under the dangerous conditions of a war zone. He said the men were lucky [AP report] to have good court-appointed attorneys that were able to avoid murder convictions. Cannon's attorneys said they planned to appeal the manslaughter conviction.

Cannon and Drotleff 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. They were initially tried in September, but the judge declared a mistrial [JURIST report] after the jury failed to reach a verdict. Earlier this month, four former Blackwater contractors appealed the April decision to reinstate manslaughter charges against them in connection with their alleged roles in a 2007 shooting incident [JURIST reports] in Baghdad, Iraq. In April 2010, 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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Supreme Court declines to hear tobacco class action suit
Maureen Cosgrove on June 28, 2011 10:17 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in Philip Morris v. Jackson [docket; cert. petition, PDF], declining to determine whether a state court erred in certifying a class of smokers who sued four tobacco companies, claiming that cigarettes containing nicotine are defective products. Despite the fact that the Louisiana state court found that cigarettes containing nicotine are not defective products, the smokers, potentially hundreds of thousands, were awarded a 10-year court-administered smoking cessation program, the implementation of which has been delayed because of the appeal process. Justice Antonin Scalia stayed the verdict [opinion, PDF; JURIST report] last September. Following the issuance of Wal-Mart v. Dukes [opinion, PDF; JURIST report] last week, the petitioners argued in their supplemental reply brief [text, PDF] that the court should take the opportunity to clarify the constitutional limits of class litigation in state courts and grant their petition for writ of certiorari. The respondents argued [supplemental reply brief, PDF] that the court's decision in Wal-Mart v. Dukes is not analogous because that case was brought in federal court and involves federal procedural laws.

The court also denied certiorari in Heydt-Benjamin v. Heydt-Benjamin [docket], thereby declining to clarify the test for determining a child's country of habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction [text]. The US Court of Appeals for the Second Circuit [official website] summarily ordered [text, PDF] that the petitioner's two children remain in the US with their father instead of returning to Switzerland pursuant to the second circuit's interpretation of the international child abduction law. Some courts look at the "shared intent of the parents," while others determine whether the child has acclimatized to the new environment such that the new location constitutes the child's habitual residence. In her petition for writ of certiorari [text, PDF], the mother argued that, because the circuit courts disagree on which test to apply, the court should grant certiorari to declare one uniform test.

The Supreme Court also turned down an appeal in Saleh v. Titan Corp. [docket; cert. petition, PDF ]. Plaintiff Iraqi nationals brought suits against two private US military contractors that provided services to the US government at the Abu Ghraib military prison during the war in Iraq. The US Court of Appeals for the District of Columbia affirmed a district court judgment holding that claims for torture and other war crimes cannot be brought against private actors under the Alien Tort Statute [28 USC § 1350] and creating a "battle-field preemption" doctrine that extends sovereign immunity to contractors. The appeals court indicated that judicial restraint is required particularly in cases "where foreign policy prerogatives of our executive and legislative branches" are at issue.

Finally, Justice Antonin Scalia dissented [text, PDF] from denial of certiorari in four criminal cases, collectively Derby v. US, involving the residual clause of the Armed Career Criminal Act (ACCA) [18 USC § 924(e)(2)(B)(ii) text]. Scalia wrote that the rule the court has announced for applying that clause is unclear. He expressed dissatisfaction that his colleagues failed to grant certiorari in those cases in order to declare the ACCA's residual clause unconstitutionally vague.




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Federal judge blocks Georgia immigration law
Maureen Cosgrove on June 28, 2011 9:00 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Georgia [official website] on Monday blocked [order, PDF] two sections of the state's controversial immigration bill [HB 87 text] that was signed into law last month [JURIST report]. Judge Thomas Thrash issued a preliminary injunction at the request of the plaintiffs, including the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [advocacy websites] and other rights groups, which filed a motion for preliminary injunction [text, PDF] in early June to block the Georgia immigration law from going into effect. The motion came one week after the groups filed a class action lawsuit [complaint, PDF; JURIST report] in the district court against the bill. Thrash dismissed the plaintiffs' Fourth Amendment, due process, equal protection and right to travel claims, but indicated that the plaintiffs would likely succeed on their Supremacy Clause and preemption claims. Thrash granted the injunction request for sections 7 and 8 of HB 87, saying that the plaintiffs would face irreparable harm should the law take effect and that the public interest weighed in favor of issuing the injunction. The bill, which was scheduled to take effect on July 1, allows law enforcement officers to ask about immigration status when questioning suspects in criminal investigations. The law also imposes fines and prison sentences of up to one year for anyone who knowingly transports illegal immigrants during the commission of a crime, and requires businesses to use the federal E-Verify [official website] system to check the immigration status of potential employees, providing that workers convicted of using fake identification to gain employment could face up to 15 years in prison and $250,000 in fines.

The Georgia suit does not mark the first time the ACLU and other groups have taken legal action against immigration laws in recent months. Last month, the ACLU filed a class action suit challenging an Indiana immigration law [JURIST report] that requires individuals to provide proof of their legal status at all times and calls for all public meetings, websites and documents to be in English only. Also last month, the ACLU and other groups filed a class action suit against a Utah immigration law [JURIST report] that requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. Federal judges have enjoined both the Indiana and Utah laws [JURIST reports]. Similar legislation has been approved in Alabama, Virginia and Oklahoma [JURIST reports]. Arizona's legislation, signed into law last April, is currently enjoined, and Governor Jan Brewer has pledged to appeal to the US Supreme Court [JURIST reports].




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Uruguay president to allow probe into military junta crimes
Zach Zagger on June 28, 2011 8:52 AM ET

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[JURIST] Uruguay President Jose Mujica [official website, in Spanish] is removing 80 administrative acts blocking investigations into crimes committed by the military junta [Country Studies backgrounder] that ruled between 1973-85, Secretary of the Presidency Alberto Breccia announced [press release, in Spanish] Monday. Mujica, who fought the military rule as a guerilla fighter [Daily Maverick report], will issue a decree later this week revoking administrative acts issued by the executive branch under the 1986 Expiry Law [text, in Spanish] which granted amnesty to military officials accused of human rights violations during military rule. Breccia said that it will be up to the courts to determine how to proceed once the administrative acts are revoked. He referred to an Inter-American Court of Human Rights (IACHR) [official website, in Spanish] ruling in March that the amnesty law not block investigations into human rights violations. However, public referenda to overturn the law have failed twice. Last month, Uruguay's House of Representatives [official website, in Spanish] failed to partially overturn the amnesty law in a tie vote after it had already been repealed [JURIST reports] by the Senate [official website, in Spanish]. In November, the Uruguayan Supreme Court [official website, in Spanish] found the law to be unconstitutional [JURIST report].

Mujicia, a leftist Senator and farmer, was elected to the presidency in a close election in November 2009. He co-founded the Tupamaro movement, an urban guerrilla force that opposed the military junta. Prior to November's judgment, Uruguay's Supreme Court had largely upheld the amnesty except in extreme circumstances, and in 2009 a popular vote failed to overturn the law [JURIST reports]. 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.




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Illinois ex-Governor Blagojevich convicted on corruption charges
Zach Zagger on June 27, 2011 4:46 PM ET

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[JURIST] A jury in the US District Court for the Northern District of Illinois [official website] on Monday convicted former Illinois governor Rod Blagojevich [personal website; JURIST news archive] on 17 of 20 counts including attempting to sell the US Senate seat vacated by President Barack Obama. The jury convicted [count tally] Blagojevich of right counts of wire fraud and on counts of extortion conspiracy, attempted extortion and conspiracy to commit bribery in connection with the sale of a US Senate seat. However, the jury remained deadlocked [Chicago Tribune report] on a charge of attempted extortion for solicitation of then-congressman Rahm Emanuel, who served as Obama's chief of staff before being elected Mayor of Chicago. The jury began deliberating on June 10. Blagojevich was previously found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. The prosecutors dropped some of the charges [JURIST report] to simplify the case for retrial including charges for racketeering. Prosecutors also dropped charges against Blagojevich's brother, his chief fundraiser. Blagojevich had tried to avoid the trial in March, but a federal judge declined to formally rule on his request to cancel the trial [JURIST reports], saying that the motion was neither serious, nor did it raise a legal question. Blagojevich's lawyers had 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.

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




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Supreme Court rules sex offender registration suit moot
Maureen Cosgrove on June 27, 2011 3:50 PM ET

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[JURIST] The US Supreme Court [official website], ruled Monday in a per curiam opinion [text, PDF] in US v. Juvenile Male that the US Court of Appeals for the Ninth Circuit had no authority to rule that the requirements of the Sex Offender Registration and Notification Act of 2006 (SORNA) [text] violate the ex post facto [Cornell LII backgrounder] clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA's enactment. The Supreme Court in a per curiam order [text, PDF; JURIST report] issued last year sent a certified question to the Montana Supreme Court [official website] seeking to determine if there was still a live controversy in the case because the challenged federal sex offender registration had expired. The certified question asked whether the ongoing sex offender registration required under state law is dependent upon the defendant's former federal sex offender registration, which would indicate a live dispute, or is required independent of federal law, rendering the ex post facto claim moot. The Supreme Court held that the ex post facto claim was moot because the defendant's "state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law." Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor would remand the case to the Ninth Circuit for the court to consider mootness in the first instance. Justice Elena Kagan did not take part in the decision.

The defendant was found delinquent by the US District Court for the District of Montana in 2005 after pleading "true" to engaging in sex acts with a minor under 12, and was later required to register as a sex offender under SORNA. On appeal, the defendant challenged this registration on ex post facto grounds in the US Court of Appeals for the Ninth Circuit. The Ninth Circuit ruled [opinion text] in favor of the defendant, finding an ex post facto violation.




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China rights activist released from prison after 3 years
Maureen Cosgrove on June 27, 2011 1:57 PM ET

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[JURIST] Prominent Chinese human rights activist Hu Jia [advocacy blog; JURIST news archive] was released from prison on Sunday after serving three years for a subversion conviction. Hu was formally charged in February 2008 and subsequently sentenced to more than three years in prison after he made public [JURIST reports] letters and recordings from Chinese lawyer Gao Zhisheng alleging that Gao was tortured into confessing to subversion charges. His appeals were denied [JURIST report]. It is likely that Hu will be placed on house arrest [Irish Times report], be deprived of his political rights for one year and be prohibited from speaking to the media.

Hu was awarded the Sakharov Prize [press release] in October 2008 by the European Parliament [official website], for his fight for democracy. Hu has become prominently known as an advocate for HIV/AIDS awareness and a defender of religious freedom and human rights in China. China has been criticized for an increase in political arrests [press release; JURIST report] leading up to the 2008 Beijing Olympics, including the trial of Hu and the conviction [JURIST reports] of Yang Chunlin [AI profile] for the same "inciting subversion of state power" crime [PRC Criminal Law article 105, PDF] with which activist Liu Xiaobo was charged [JURIST report] in June 2009.




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Supreme Court rules New Jersey court lacks personal jurisdiction over UK company
Zach Zagger on June 27, 2011 1:36 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] in a plurality opinion Monday reversed [opinion, PDF] the New Jersey Supreme Court's grant of personal jurisdiction over a UK company in a products liability suit. Robert Nicastro alleged that he was injured by a defective metal-shearing machine manufactured in the UK by J McIntyre Machinery, Ltd. [corporate website] and sold in the US. McIntyre is incorporated in the UK and sells its machines in the US through a separate company distributor. The Supreme Court of New Jersey [official website] held [opinion text] that McIntyre was subject to specific personal jurisdiction in New Jersey for injuries sustained there under a "stream of commerce" theory where the company knew or reasonably should have known that its products would be sold throughout the US. Justice Anthony Kennedy wrote the plurality opinion, relying on Justice Sandra Day O'Connor's opinion in Asahi Metal Industries v. Superior Court [opinion text], holding that McIntyre had not sufficiently directed its business toward New Jersey to subject it to personal jurisdiction:
Recall that respondent's claim of jurisdiction centers on three facts: The distributor agreed to sell J. McIntyre's machines in the United States; J. McIntyre officials attended trade shows in several States but not in New Jersey; and up to four machines ended up in New Jersey. The British manufacturer had no office in New Jersey; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to, the State. Indeed, after discovery the trial court found that the defendant does not have a single contact with New Jersey short of the machine in question ending up in this state. These facts may reveal an intent to serve the U.S. market, but they do not show that J. McIntyre purposefully availed itself of the New Jersey market.
Justice Stephen Breyer concurred, joined by Justice Samuel Alito, deprived the plurality of a majority opinion agreeing that McIntyre was not subject to personal jurisdiction but limited his decision to prior precedent. Breyer warned that the court should refrain from going any further because this case "does not implicate modern concerns, and because the factual record leaves many open questions, this is an unsuitable vehicle for making broad refashion basic jurisdictional rules." Three justices dissented in an opinion by Justice Ruth Bader Ginsburg's arguing a foreign company that sells its products in the US without restriction should not be able to avoid liability for deficient products simply because it uses a separate US distributor.

The Supreme Court also decided another personal jurisdiction issueMonday . The court ruled [opinion, PDF] unanimously in Goodyear v. Brown [Cornell LII backgrounder; JURIST report] that foreign subsidiaries of the American corporation Goodyear Tire and Rubber Company [corporate website] are subject to neither specific nor general personal jurisdiction in North Carolina. In that case, two North Carolina teenagers were killed in a bus accident in France when a tire manufactured in Turkey malfunctioned. Opposite McIntyre, in that case Justice Ginsburgh wrote the majority opinion holding that North Carolina lacked specific personal jurisdiction over the foreign subsidiaries, because the cause of action did not arise out of or relate to any contacts between the suit and the forum state. Further, the court held there was no general personal jurisdiction because there was no "continuous and systematic" affiliation with North Carolina.




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Ivory Coast authorities charge 15 Gbagbo subordinates with gang, economic crimes
Maureen Cosgrove on June 27, 2011 1:21 PM ET

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[JURIST] Fifteen associates of former Ivory Coast president Laurent Gbagbo [BBC profile] were charged on Sunday with crimes allegedly committed as a result of the country's post-election violence [BBC backgrounder; JURIST news archive] that has been ongoing since last November. The 15 were charged [AFP report] with economic crimes, harming the authority and sovereignty of the state and setting up armed gangs. Former prime minister Gilbert Ake N'Gbo, former foreign minister Alcide Djedje and former governor of the Central Bank of West African States Philippe-Henri Dacoury-Tabley were among those charged. After Gbagbo was captured and arrested [JURIST report] on April 11, the 15 were placed under house arrest at a hotel in Abidjan and will eventually be transferred to a prison.

International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] officially requested permission [JURIST report] from ICC judges last week to begin an investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed in the post-election violence. The Ivory Coast announced earlier this month it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into current Ivory Coast President Alassane Ouattara [BBC profile] and his forces' continuing attacks against supporters of Gbagbo earlier this month. In April, Human Rights Watch [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Supreme Court strikes down Arizona campaign finance restriction
Zach Zagger on June 27, 2011 10:53 AM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Monday in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [Cornell LII backgrounder] that an Arizona campaign finance regulation that provided 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, violates the First Amendment [text]. The court held 5-4 that such a system substantially burdens political speech and is not sufficiently justified by a compelling state interest to satisfy the First Amendment. The Arizona Citizens Clean Elections Act [Ariz Rev Stat Ann § 16-940 et. seq.] provided a system by which candidates running for state office could opt into a public financing scheme. Under the scheme, the candidate would agree to follow certain campaign finance restrictions and agree to other things like participating in a public debate in exchange for receiving an allotment of public funds for the campaign. Under the Act, candidates participating in the public financing scheme would receive matching funds for every dollar a privately funded candidate spent over the original public allotment, less 6 percent accounting for fund raising expenses. The scheme allowed for a situation where if a group spent $1,000 publishing a brochure supporting one privately-funded candidate then a publicly-funded candidate would receive $940, but if the brochure supported the publicly-funded candidate the privately-funded candidate receives nothing. The court held that such a scheme is substantially burdensome on the privately-funded candidates because it harms them for exercising First Amendment rights to raise and/or spend their own money on their campaign. The court said that it has never held that the state's interest in leveling the playing field is enough to suppress or alter political speech. Justice Elena Kagan wrote the dissent, joined by three others, disagreeing that the finance system was a substantial burden and that the state's interest was justified based on ensuring the legitimacy and public trust in the election system. She wrote:
The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anti-corruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."
The majority opinion was authored by Chief Justice John Roberts.

The Supreme Court heard oral arguments [JURIST report] in the case in March. 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.




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Supreme Court rules foreign subsidiary not subject to personal jurisdiction
Maureen Cosgrove on June 27, 2011 10:40 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] unanimously in Goodyear v. Brown [Cornell LII backgrounder; JURIST report] that foreign subsidiaries of the American corporation Goodyear Tire and Rubber Company [corporate website] are subject to neither specific nor general personal jurisdiction in North Carolina. Two North Carolina teenagers were killed in a bus accident in France when a tire manufactured in Turkey malfunctioned. The boys' parents initiated a wrongful death lawsuit against Goodyear and the petitioners, three Goodyear subsidiaries, organized and operated in Luxembourg, Turkey and France. The North Carolina Court of Appeals [official website] ruled [opinion, PDF] that the defendants were subject to general personal jurisdiction in North Carolina. The Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, reversed the lower court, holding that North Carolina lacks personal jurisdiction over the foreign subsidiaries. Because the cause of action does not arise out of or relate to any contacts between the suit and the forum state, the North Carolina court lacked specific jurisdiction. Furthermore, the court refused to recognize that the state court had general personal jurisdiction over the matter:
A connection so limited between the forum and the foreign corporation, we hold, is an inadequate basis for the exercise of general jurisdiction. Such a connection does not establish the "continuous and systematic" affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation's contacts with the State.
The court relied primarily on International Shoe Co. v. Washington, which provides that state courts may exercise personal jurisdiction over an out-of-state defendant who has "certain minimum contacts with [the State] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" The petitioners manufacture their tires primarily for European and Asian markets, and the tires differ in size and construction from tires ordinarily sold in the US. Furthermore, the petitioners are not registered to do business in North Carolina, have no place of business, employees, or bank accounts in the state, do not design, manufacture, or advertise their products in the state, do not solicit business in the state, and do not sell or ship tires to North Carolina customers. A small percentage of their tires were distributed in North Carolina by other Goodyear affiliates, however. Based on these circumstances, the court concluded, the respondents had failed to show that the petitioners placed their tires in the North Carolina "stream of commerce" such that the state court had personal jurisdiction over the matter.

The respondents had argued in their merits brief [text, PDF] that refusing to find jurisdiction over foreign subsidiaries of US corporations would encourage outsourcing to avoid litigation in the US. The petitioners argued [merits brief, PDF] that a finding of personal jurisdiction would invite forum shopping and deter interstate and foreign commerce. The Supreme Court did not address either of these arguments in its opinion.




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Supreme Court strikes down violent video games ban
Julia Zebley on June 27, 2011 10:26 AM ET

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[JURIST] The US Supreme Court [official website] on Monday ruled [opinion, PDF] 7-2 in Brown v. Entertainment Merchants Association [Cornell LII backgrounder; JURIST report] that a California ban on the sale of violent video games to minors violates the First Amendment [text]. California Civil Code sections 1746-1746.5 [text] sought to prohibit the sale of violent video games to minors where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors, and causes the game as a whole to lack serious literary, artistic, political or scientific value for minors. In an opinion by Justice Antonin Scalia, the court ruled that the law does not meet the strict scrutiny standard for limiting free speech. Scalia stated that the violent content of video games is clearly protected, disagreeing with California's argument that violent content is obscene and thus unprotected:
California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.
Justice Samuel Alito and Chief Justice John Roberts concurred with striking down the law (for vagueness), but called for a more narrowly tailored law to suppress violent video game purchases by minors. Justices Clarence Thomas and Stephen Breyer each filed dissents.Thomas argued that the original understanding of the First Amendment did not include the rights for minors to speak or be spoken to. Breyer would uphold the law as fulfilling a compelling government interest—aiding parental duties and protecting the well-being of youth—under strict scrutiny. He also argued that the restriction in question was a modest restriction that should be upheld.

The Supreme Court agreed to hear the case last year after the US Court of Appeals for the Ninth Circuit struck down the ban [JURIST reports] as unconstitutional. The bill, originally signed into law by then-California governor Arnold Schwarzenegger in October 2005, prohibited the sale or rental of violent video games to minors under the age of 17, and required retailers to label violent games. In December 2005, US District Court Judge Ronald Whyte issued a temporary injunction [JURIST report] against the enforcement of the law after the Entertainment Software Association (ESA) and the Video Software Dealers Association (VSDA) [trade websites] filed a lawsuit [JURIST report]. Judges have struck down similar laws as unconstitutional in Michigan, Illinois, Minnesota and Louisiana [JURIST reports].




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Supreme Court to rule on FCC indecency policy
Jaclyn Belczyk on June 27, 2011 10:04 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday added 11 more cases [order list, PDF] to its 2011-2012 docket. In FCC v. Fox Television Stations, Inc. [docket; cert. petition, PDF], the court will rule on whether the Federal Communications Commission (FCC) [official website] current indecency enforcement regime violates the First or Fifth Amendment [text] to the US Constitution. The FCC sought Supreme Court review after the US Court of Appeals for the Second Circuit ruled last year that the FCC's indecency policy, which places restrictions on profanity and nudity during television broadcasting, is unconstitutionally vague [JURIST reports] and could have a "chilling effect" on speech. The case hinges on indecency issues raised in two separate broadcasts, one in which a nudity scene appeared in a television crime show during prime-time hours, and the other involving celebrities using expletives during live broadcasting events. The Supreme Court originally remanded the case to the Second Circuit after ruling [JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.

In United States v. Jones [docket; cert. petition, PDF], the court will decide whether the warrantless use of a global positioning systems (GPS) tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment [text] and whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent. The federal government sought Supreme Court review [JURIST report] after the US Court of Appeals for the District of Columbia Circuit ruled [opinion, PDF; JURIST report] last year that prolonged use of GPS to monitor suspects' vehicles violates the Fourth Amendment protection against unreasonable searches and seizures.

In National Meat Association v. Harris [docket; cert. petition, PDF], the court will consider whether a California law requiring slaughterhouses to "immediately euthanize" any nonambulatory animal on its premises is preempted by the Federal Meat Inspection Act (FMIA) [text]. The provisions of the California law were considered and expressly rejected by federal regulators because they eliminate certain federally required ante-mortem inspection of possibly diseased animals. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the California law was not preempted. The questions before the court are (1) Did the Ninth Circuit err in holding that a "presumption against preemption" requires a "narrow interpretation" of the FMIA's express preemption provision, in conflict with the court's decision in Jones v. Rath Packing Co. [opinion text] that the provision must be given "a broad meaning"?; (2) Where federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally-inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA?; and (3) Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the "premises, facilities, [or] operations" of federally-regulated slaughterhouses.

In Messerschmidt v. Millender [docket; cert. petition, PDF], the court will consider whether police officers are entitled to qualified immunity [Cornell LII backgrounder] where they execute search warrants later determined invalid. The Ninth Circuit ruled [opinion, PDF] that the officers in this case were not entitled to qualified immunity. The Supreme Court has held in United States v. Leon and Malley v. Briggs [opinions text] that officers are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The questions before the court are (1) Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on-point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search; and (2) Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

In Martel v. Clair [docket; cert. petition, PDF], the court will determine whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence. The district court denied respondent Kenneth Clair's petition for habeas corpus and refused to allow him to replace his lawyer, but the Ninth Circuit reversed [opinion, PDF], ruling that the district court abused its discretion.

In Knox v. Service Employees International Union, Local 1000 [docket; cert. petition, PDF], the court will decide whether a state, consistent with the First and Fourteenth Amendments [text], may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing notice that includes information about that assessment and provides an opportunity to object to its exaction. The Ninth Circuit held that no second notice was required under the Supreme Court's opinion in Chicago Teachers Union v. Hudson [opinion text]. The court will also determine whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.

In Kappos v. Hyatt [docket; cert. petition, PDF], the court will rule on an area of patent law. When the US Patent and Trademark Office (PTO) [official website] denies an application for a patent, the applicant may seek judicial review of the agency's final action through either of two avenues. The applicant may obtain direct review of the agency's determination in the US Court of Appeals for the Federal Circuit under 35 USC § 141 [text]. Alternatively, the applicant may commence a civil action against the Director of the PTO in federal district court under 35 USC § 145 [text] The court will decide whether a plaintiff in a § 145 action may introduce new evidence that could have been presented to the agency in the first instance. The court will also consider whether, when new evidence is introduced under § 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO. The Federal Circuit held [opinion, PDF] that "§ 145 imposes no limitation on an applicant's right to introduce new evidence before the district court."

In Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S [docket; cert. petition, PDF], the court will rule on drug patents. When the Food and Drug Administration (FDA) [official website] approves a drug for multiple uses, the Hatch-Waxman Act allows generic drug makers to avoid contested patent litigation by marketing generic versions of the drug solely for non-patented uses. The FDA lacks the authority and expertise needed to verify the patent information submitted by name-brand drug companies, however, so it defers to their descriptions of the scope of their patents. Such companies can therefore block the approval of generic drugs by submitting overbroad patent descriptions to the FDA, effectively extending their patents to cover non-infringing uses. To combat this problem, the Act allows [21 USC § 355(j)(5)(C)(ii)(I) text] a "counterclaim seeking an order requiring the [patent] holder to correct or delete the patent information submitted by the holder on the ground that the patent does not claim an approved method of using the drug." The Federal Circuit held [opinion, PDF] that the counterclaim provision effectively authorizes only "delet[ing]" improperly listed patents, but not "correct[ing]" information that misrepresents the scope of the approved uses claimed by a patent. Petitioners claim that ruling expressly invalidates longstanding FDA regulations defining "patent information," which the FDA deems "essential" to administering the Act, without seeking the agency’s views. The question before the court is whether the counterclaim provision applies when (1) there is "an approved method of using the drug" that "the patent does not claim," and (2) the brand submits "patent information" to the FDA that misstates the patent’s scope, requiring "correct[ion]."

In Mims v. Arrow Financial Services, LLC [docket; cert. petition, PDF], the court will consider whether Congress divested the federal district courts of their federal question jurisdiction [28 USC § 1331 text] over private actions brought under the Telephone Consumer Protection Act [FCC summary, PDF]. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] that federal courts lack jurisdiction over private actions under the Act.

In Coleman v. Maryland Court of Appeals [docket, cert. petition, PDF], the court will determine whether Congress constitutionally abrogated states' Eleventh Amendment [text] immunity when it passed the self-care leave provision of the Family and Medical Leave Act (FMLA) [DOL backgrounder]. Petitioner Daniel Coleman was terminated from his job at the Maryland Court of Appeals and filed suit under Title VII and FMLA. The US Court of Appeals for the Fourth Circuit affirmed [opinion, PDF] a lower court ruling that dismissed petitioner's FMLA clams as barred by Eleventh Amendment immunity.

The court also agreed to hear Credit Suisse Securities LLC v. Simmonds [docket], case involving the statute of limitations for securities litigation.




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Bangladesh jails more than 650 soldiers in connection to 2009 mutiny
Zach Zagger on June 27, 2011 10:01 AM ET

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[JURIST] A Bangladesh military court on Monday sentenced 657 border guards for their roles in a February 2009 mutiny [BBC backgrounder; JURIST news archive]. The verdict was unprecedented in the number of people convicted [AFP report] at once and brings the total number of soldiers jailed for the mutiny to over 3,000. The court originally charged 667 guards from the Bangladesh Rifles (BDR) [official website] with nine being acquitted and one dying during the trial. One hundred eight guards received the maximum seven-year sentence the court could issue. Bangladesh has conducted a series of military and civil trials for the thousands of citizens and soldiers involved in the mutiny, which left 74 dead. The military court is part of dozens of courts set up to try members of the 2009 mutiny. It does not allow defendants to have lawyers and there is no right to appeal.

Last January, the civilian trial of 800 soldiers charged [JURIST report] with crimes stemming from their roles in the 2009 mutiny began in the capital city of Dhaka. The trial involves some of the most serious charges with those found guilty facing the death penalty. The trial is expected to last over a year and to include the testimonies of more than 1,000 individuals. In August 2010, a special Bangladeshi military court sentenced [JURIST report] 14 members of the BDR for their roles in the mutiny. The tribunal, led by BDR head Maj. Gen. Mainul Islam, fined each of the men Tk 100 and sentenced [BDNews24 report] them to prison terms ranging from four months to six years, one year short of the maximum possible sentence for rebellion under Bangladeshi law. About 3,500 other soldiers will face lesser charges in military courts.




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Tunisia court upholds conviction of nephew of ex-president Ben Ali
Maureen Cosgrove on June 27, 2011 9:47 AM ET

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[JURIST] A Tunisian appeals court on Saturday upheld the conviction of Imed Trabelsi, businessman and nephew of ousted former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive]. The 14th Criminal Chamber of the Tunis Court of Appeal sentenced Trabelsi to four years in prison [TAP report] and ordered him to pay a 3,000-dinar fine after being convicted on charges of possession and consumption of drugs. Trabelsi, who was arrested after Ben Ali fled the country to Saudi Arabia in January, appealed his conviction in May when he was initially sentenced to two years in prison and ordered to pay a 2,000-dinar fine by the Court of First Instance of Tunis. A spokesman for the Justice Ministry said he will eventually stand trial [AP report] on other charges including corruption, fraud and illegal trafficking of archaeological items.

Tunisia has been cracking down on the family of Ben Ali since the ousted president fled the country in January amidst protests ending his 23-year autocratic rule in which his family amassed substantial wealth that many Tunisians say was at their expense. Last week, a Tunisian court sentenced [JURIST report] in absentia Sofiane Ben Ali, another nephew of Ben Ali, to 15 years in prison for issuing bad checks totaling more than USD $430,000. That same week, Ben Ali and his wife were convicted in absentia and sentenced to 35 years in prison on charges of theft and unlawful possession of money and jewelry just hours after the trial began that morning [JURIST reports]. The two were also charged with illegal possession of drugs and weapons, but the verdict for those charges would not be announced until June 30. Ben Ali said he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report], most of which stem from allegations he authorized the use of force against protesters during the protests, resulting in more than 200 deaths.




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Cambodia genocide tribunal begins trial of former Khmer Rouge leaders
Maureen Cosgrove on June 27, 2011 8:50 AM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] on Monday began the initial hearings [materials; agenda, PDF] in the trial of four former leaders of the communist Khmer Rouge regime [JURIST news archive; BBC backgrounder] of the 1970s. The four leaders include Nuon Chea, who was Pol Pot's second-in-command and the group's chief ideologist, former head of state Khieu Samphan, ex-foreign minister Ieng Sary, and his wife, Ieng Thirith [case profiles, PDF], who served as minister for social affairs. The four, each of whom is over 79 years old, are the first top officials to face trial. They are charged with crimes against humanity, war crimes, genocide, religious persecution, homicide and torture, but have pleaded not guilty to those charges. Three of the four alleged that the proceedings were unfair, indicated they were in poor health and left the courtroom [ABC report] Monday. The court will focus primarily on procedural issues [AP report] at this early stage of the trial, and present evidence and testimony beginning in late August.

The Khmer Rouge have been blamed for the deaths of some 1.7 million people [PPU backgrounder] from starvation, disease, overwork and execution between 1975 and 1979. The UN-backed ECCC was established in 2001 to investigate and try those responsible for the Cambodian genocide that resulted in the deaths of approximately one-third of the Cambodian population. Khieu Samphan has defended [JURIST report] the late Khmer Rouge dictator Pol Pot in his 2007 book, denying that he was responsible for genocide. Nuon Chea was arrested and charged in September 2007 and said that he was never in the position to order the deaths attributed to him, but that he would cooperate with the ECCC [JURIST reports]. Ieng Thirith and Ieng Sary were also arrested and charged in September 2007. The ECCC handed down its first and only conviction [JURIST report] last year against Kaing Guek Eav [TrialWatch profile], better known as "Duch", who was in charge of the notorious S-21 prison in Phnom Penh.




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ICC issues arrest warrants for Libya leader Gaddafi, his son, head of intelligence
Zach Zagger on June 27, 2011 8:43 AM ET

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[JURIST] The International Criminal Court (ICC) [official website] Monday issued arrest warrants [decision, PDF] against Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two of his high-ranking officials. The Pre-Trial Chamber I [official website] issued warrants [press release] for Gaddafi, his son Saif al-Islam Gaddafi, the "de facto Prime Minister," and his brother-in-law Abdullah al-Sanussi [warrants, PDF], the head of intelligence, for alleged crimes against the people of Libya to quell the revolt that began last February. Based on the materials provided to the Chamber by the Prosecutor's office, the Chamber found reasonable grounds that between February 15 and February 28, 2011, Gaddafi not only conspired with the other two to perpetrate crimes against humanity against the people of Libya but took actions to cover-up the crimes. The Chamber noted:
There is also information which indicates that there was a campaign to cover up the alleged crimes through the following acts: (i) targeting journalists to prevent them from reporting events, and punishing them for having done so; (ii) repeatedly blocking satellite transmission of channels such as Al-Jazeera and Al-Hurra and disrupting internet and telecommunications services; (iii) confiscating laptops, cameras, mobile phones SD and SIM cards from persons stopped at checkpoints; (iv) removing dead bodies by the Security Forces including from the hospitals" and throwing of at least one body into a rubbish truck in Tripoli; (v) searching for wounded protesters in the Tripoli hospital; and (vi) leveling to the ground a Mosque which bore bullet holes as a result of an attack by the Security Forces in Al- Zawiyah; and (vii) removing evidence of mass graves in Al-Zawiyah."
Libya is not a signatory of the Rome Statute [text] granting the ICC its jurisdiction, and Gaddafi has refused to recognize its authority. Still, the Chamber noted that, "the official position of an individual, whether he or she is a national of a State party or of a State which is not party to the Statute, has no effect on the Court's jurisdiction."

Last week, ICC Chief Prosecutor Luis Moreno-Ocampo [official website] presented the materials to Pre-Trial Chamber. He said his office had gathered "direct evidence" [JURIST report] that shows Gaddafi personally ordered attacks on civilian protestors and that his forces used live ammunition on crowds, attacked civilians in their homes, used heavy weapons against people in funeral processions and placed snipers to shoot those leaving mosques after prayer services. Moreno-Ocampo announced [JURIST report] last month that his office was pursuing arrest warrants against Gaddafi and the two others in his "inner circle." He said Saif al-Islam was acting as Gaddafi's "de facto Prime Minister" and called al-Sanussi Gaddafi's "right-hand man" and "executioner." At that time, Moreno-Ocampo said his office was almost prepared for trial, having collected quality testimony from some who have fled Libya. There have been numerous allegations of war crimes and human rights violations over the Libyan revolt which has persisted since February. Earlier this month, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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Israel threatens 10-year ban for journalists participating in Gaza aid flotilla
Dan Taglioli on June 26, 2011 9:22 PM ET

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[JURIST] Israel issued a warning to the international media on Sunday, threatening deportation and a 10-year ban from the country for any foreign journalist caught on board an aid flotilla headed for the Gaza Strip. The Israeli Government Press Office [official website] issued a letter to foreign journalists [AP report] reportedly calling the flotilla a dangerous provocation by extremists and an intentional violation of Israeli law. The letter warned that in addition to a ban from the country, participants in the flotilla may face equipment seizures and other sanctions. The aid flotilla will violate Israel's naval blockade and thus the Israeli government considers it a threat to national security. The Gaza naval blockade began in 2007 after Hamas [CFR backgrounder], designated as a terrorist organization [text] by the US State Department, was elected [JURIST report] as the ruling party of the Palestinian Authority. The blockade was violated last year by a similar aid flotilla [JURIST report], resulting in an Israeli commando raid that left nine dead and many wounded. The Turkish ship on which the violence occurred [ABC report] was one of six organized [Guardian backgrounder] by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave. Journalist groups have responded with condemnation of the Israeli government's warning against participating in this year's flotilla, demanding that the government rescind its threats and allow journalists to cover a legitimate news event.

Israel has faced ongoing criticism from the UN and international human rights groups for its action in the Palestinian territories, which have been under Israeli military control since 1967. UN High Commissioner for Human Rights Navi Pillay [official profile] this month condemned [press release] the killings of between 30 and 40 protesters had been killed by Israeli security forces along the ceasefire line between occupied borders. Nearly 20 civilian protesters were reportedly killed [Reuters report] during a protest on June 5 marking the anniversary of the 1967 Middle East war [NPR backgrounder]. In January, a UN official alleged [JURIST report] that Israeli authorities had committed several illegal acts [press release] in the Palestinian territories [UNICEF backgrounder] since the start of the year, making the prospect of a viable Palestinian state unlikely. In June 2010, Israeli human rights group B'Tselem [advocacy website] released its annual report [JURIST report], noting an advancement in the rights of Palestinians, but calling for greater improvement. The report found that fatalities had declined by 80 percent compared to the previous year, and the quality of life had improved in the West Bank. The report called on Israel to dismantle all settlements, saying that merely halting new settlements is insufficient. The rights organization also chided Israeli security forces for not adequately protecting Palestinians from violence at the hands of Israelis, criticizing a "history of leniency" against the perpetrators of that violence. In March 2010, UN Secretary-General Ban Ki-moon called Israeli settlement construction in the West Bank "illegal" [JURIST report], and supported a plan by Palestinian Authority Prime Minister Salam Fayyad [BBC profile] to build the institutions of an independent state by 2011.




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Federal judge issues injunction against Indiana abortion law
Dan Taglioli on June 26, 2011 5:55 PM ET

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[JURIST] The US District Court for the Southern District of Indiana [official website] on Friday granted a preliminary injunction [text, PDF] against a state law [HEA 1210, text] that would block Medicaid funding for Planned Parenthood of Indiana (PPIN) [official website] and other organizations providing abortion services. The decision handed down by Judge Tanya Walton Pratt [official profile] prevents application of the portion of the law that bans contracts between state agencies and any entity that performs abortions or maintains a facility where abortions are performed. This ban includes disbursement of grant money, including federal Medicare funds, a provision PPIN claims is not legal under the federal Medicaid Act's "freedom of choice" provision, which allows states to disallow Medicare funding for medical providers based on deficiencies in quality of service. The court's decision is not the final word in the case, but it finds that PPIN has demonstrated a sufficient likelihood of success for its contention that HEA 1210 is illegal under federal law:
Unquestionably, states have authority to exclude medical providers from participating in Medicaid under some circumstances. The question then becomes whether this is one of those circumstances. ... [I]t is well-settled that the "freedom of choice" provision does not give Medicaid recipients an absolutely unfettered right to choose their healthcare provider. ... The defunding provision, however, renders PPIN "unqualified" to serve as a Medicaid provider because, separate and apart from its basic health care services, PPIN also performs abortions. Thus, the question arises: Can Indiana pick and choose Medicaid providers based on the range of medical services they provide?
In her opinion Pratt noted that PPIN's likelihood of success is supported by the language of various provisions in the Medicaid statutes and applicable case law, along with the federal government's recent rejection of Indiana's proposed amendment to its Medicaid plan.

Last month, a federal judge refused to block the law [JURIST report] upon passage. But Friday's ruling is in line with a recent US Department of Justice (DOJ) [official website] brief that urged the court to grant an injunction [brief, PDF] to stop the enforcement of the Indiana law [JURIST report], which went into effect in May. The brief echoed arguments made earlier this month by the Obama administration, which argued against the law [JURIST report] in a letter to the state, which is one of several to have acted recently to tighten restrictions on abortions. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging a South Dakota law requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton vetoed a pair of bills [JURIST report] that would have restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry signed a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Iowa, Kansas and Idaho [JURIST reports].




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Florida governor signs bill restricting access to abortions
Ashley Hileman on June 26, 2011 4:06 PM ET

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[JURIST] Florida Governor Rick Scott (R) [official website] on Friday signed into law [AP report] two bills that affect the procedures surrounding a woman's ability to receive an abortion [JURIST news archive] within the state. The first, HB 1127 [text, PDF], requires that an ultrasound be performed prior to an abortion and that the individual performing the procedure offer the woman the opportunity to view the live ultrasound images and hear an explanation of the images. The bill also provides that a woman has the right to decline to view the images but only after signing a form acknowledging that the opportunity was presented to her. Additionally, there is an exception to the requirement that a woman be informed of her right to view the images if she is seeking an abortion as a result of having been the victim of rape, incest, domestic violence, or human trafficking. The second bill signed by Scott, HB 1247 [text, PDF], relates to parental notice of abortions sought by minors. In addition to revising the definition of constructive notice required if actual notice of a parent is not possible, the bill also affects the ability of a minor to obtain a court waiver from the parental notification law. Prior to passage of the bill, a court was required to rule on the minor's petition within 48 hours. Now, however, the court has three business days after the petition is filed to hand down its ruling. If it fails to rule within the three day period, the minor can petition for a hearing, which may require another 48 hours of waiting. Just over one year ago, former Governor Charlie Crist vetoed [JURIST report] a bill with requirements similar to that of HB 1127.

Florida is not alone in its quest to restrict access to abortions. Earlier this month, the Iowa House of Representatives voted in favor [JURIST report] of a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy, making it the most restrictive abortion law in the country. The House's bill significantly amends a bill [SF-534 text, PDF] previously introduced by the state Senate and would ban abortions after the beginning of the gestation period, which occurs at a woman's last period before her pregnancy, thus potentially banning abortions as early as 18 weeks. There is no exception in the bill for the health of the mother, although there is for her life. In May, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy websites] filed a lawsuit [JURIST report] challenging a South Dakota law [HB 1217 materials] requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. The law, signed [JURIST report] by Governor Dennis Daugaard [official website] in March, is set to take effect July 1 and would impose the longest waiting period in the country.




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Military court upholds war crimes conviction of Hamdan
Ashley Hileman on June 26, 2011 2:04 PM ET

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[JURIST] An appeals panel for the US Court of Military Commission Review [official website] on Friday upheld the conviction [ruling, PDF] of former Osama Bin Laden [JURIST news archive] driver and Guantanamo Bay [JURIST news archive] detainee, Salim Ahmed Hamdan [DOD materials; JURIST news archive]. The panel, which decided to hear the appeal [JURIST report] in September, ultimately rejected [AP report] the defense's argument that Hamdan's charge of providing material support to terrorism is not a war crime capable of being prosecuted by a military tribunal, stating:
It is not appellant's conduct in isolation that constitutes a law of war violation triable by military commission. Rather, it is his knowledge, intent, and conduct, in support of terrorism, and in the specific context of a conflict triggering application of U.S. treaty obligations per Common Article 3, which make it cognizable under the 2006 M.C.A. In enacting the 2006 M.C.A., Congress circumscribed the capacity of the military to unilaterally interpret the law of war and craft law of war offenses and punishments in connection with al Qaeda and terrorism offenses. The charges at bar are not the exercise of fiat or expediency by the executive branch; they are the product of closely prescribed statutes of limited application encompassing the peculiarities of the modern geopolitical environment.
Hamdan was originally convicted [JURIST report] in August 2008 on charges [charge sheet, PDF], which stemmed from his employment as Bin Laden's driver, and sentenced to 66 months of imprisonment, but given credit for 60 months he had already spent in US custody.

In November 2008, Hamdan was released [JURIST report] to his native country Yemen to serve the last month of his prison sentence and is now living freely in Yemen. His release alleviated concerns that arose when government lawyers said he could be held indefinitely [JURIST report]. In October 2008, a US military judge denied [ruling, PDF; JURIST report] a request [motion, PDF] by prosecutors that he reconsider a decision that reduced Hamdan's sentence [JURIST report] from five-and-a-half years to six months because of credit for time already served. Hamdan was initially taken into custody in 2001, and in 2006 he successfully challenged President George W. Bush's military commission system when the Supreme Court ruled [opinion, PDF; JURIST report] that the commission system as initially construed violated US and international law. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system.




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Federal judge enjoins Indiana immigration law
Aman Kakar on June 25, 2011 3:00 PM ET

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[JURIST] A judge for the US District Court Southern District of Indiana [official website] on Friday issued a preliminary injunction [text, PDF] against two provisions of a controversial Indiana immigration law [SEA 590 text]. The American Civil Liberties Union (ACLU) [advocacy website] filed a class action lawsuit [JURIST report] in May challenging the two provisions, one which authorized state and local police officers to make warrantless arrests of persons who have an immigration court removal order against them or who they have probable cause to believe have been indicted or convicted of aggravated felonies. The second challenged provision created a new infraction for anybody other than police officers to knowingly or intentionally accept consular identification as a valid form of identification. Judge Sarah Baker rejected the police officers authority to arrest based on the concession by the defendants that nothing under Indiana law makes the receipt of a removal order, a notice of action or a person's having been indicted for or convicted of an aggravated felony a crime. Baker also expressed concern that the statute contains no reference to Fourth Amendment [Cornell LII backgrounder] protections nor does it include a requirement that power to arrest be granted only if the officer has a separate lawful reason for the arrest. Baker also faulted the statute for failing to provide due process:
Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 19 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, leaving a deafening silence as to what happens to the arrestee post his arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release. There is in fact a complete void within the new statute regarding all other due process protections.
The order rejected the state's authority to make warrantless arrests based on preemption, finding that the states have no authority to assist the federal government in enforcing immigration laws on their own accord without any agreement with the federal government.

Similar immigration laws have been enacted across the country. In April, the Georgia General Assembly approved a bill requiring police to check the immigration status [JURIST report] of anyone they have probable cause to believe has committed a criminal offense and requiring businesses to use E-Verify to check the immigration status of potential employees. Similar legislation has also been approved in Alabama, Virginia, South Carolina, Utah and Oklahoma [JURIST reports]. Arizona's law is also currently enjoined, and Arizona Governor Jan Brewer (R) has pledged to appeal to the US Supreme Court [JURIST reports]. In May, the US Supreme Court [official website] upheld an Arizona law [JURIST report] requiring employers to utilize the E-Verify system, finding that it was not preempted by federal law and thus not a violation of the Supremacy Clause [Cornell LII backgrounder]. This decision could have an impact on lawsuits challenging legislation in other states.




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Tunisia ratifies Rome Statute, joining ICC
Daniel Makosky on June 25, 2011 2:00 PM ET

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[JURIST] Tunisia on Friday acceded [press release] to the Rome Statute [text] of the International Criminal Court (ICC) [official website], which is now set to become effective in the country on September 1, 2011. EU High Representative Catherine Ashton [official profile] commended the move, noting the positive effects that ratification will have [press release, PDF] on prosecuting war crimes. Amnesty International (AI) [advocacy website] offered similar praise [press release] and encouraged the country's regional neighbors in North Africa to follow suit. Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein and President of the Assembly of States Parties to the Rome Statute of the ICC remarked [press release]:
Ratifying this founding document of the International Criminal Court has become a symbol of a country's commitment to the rule of law and the fight against impunity. I am very pleased to see that Tunisia has decided to send this strong message as an expression of a future on the basis of the rule of law. This is especially true for the most serious crimes under international law: genocide, war crimes, crimes against humanity and aggression. Tunisia's accession to the Rome Statute is also a testament of the profound changes brought about by the "Arab Spring," which started in Tunisia. It fulfills a central demand of peoples everywhere for societies guided by clear rules and the principle of equality before the law.
Tunisia becomes the 116th signatory to the treaty since 1998.

The ICC has been one vehicle through which the international community has attempted to hold accountable leaders in the Middle East and North Africa who have used violent means to quell protests during the Arab Spring [JURIST news archive]. In February, the UN Security Council referred the situation in Libya to the ICC [JURIST report], following allegations of violence against protesters by the government of Muammar Gaddafi. Earlier this week, the ICC said it will decide whether to issue arrest warrants for Gaddafi [JURIST report] and two high-ranking officials on allegations of war crimes. Chief Prosecutor Luis Moreno-Ocampo [official website] said his office has gathered "direct evidence" that the men committed crimes against humanity in connection with efforts to quell the three-month old Libyan revolt. Libya has said it does not recognize the jurisdiction of the ICC and will ignore the warrants if issued.




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New York governor signs same-sex marriage legislation
Aman Kakar on June 25, 2011 12:00 PM ET

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[JURIST] New York Governor Andrew Cuomo (D) [official website] on Friday signed legislation [A8354-2011 materials] allowing same-sex couples to marry in the state. The New York State Senate [official website] had passed the Marriage Equality Act 33-29 earlier that day following weeks of negotiations. The act eliminates any legal distinctions between opposite-sex and same-sex marriages [JURIST news archive] and specifies that no clergy member will be forced to perform a marriage ceremony and that any refusing clergy member will not be subject to legal action. The New York State Assembly passed the bill [JURIST report] earlier in the month 80-63. The law will go into effect on July 25, 2011. In a press release [text], Cuomo praised the passage of the bill:
New York has finally torn down the barrier that has prevented same-sex couples from exercising the freedom to marry and from receiving the fundamental protections that so many couples and families take for granted. With the world watching, the Legislature, by a bipartisan vote, has said that all New Yorkers are equal under the law. With this vote, marriage equality will become a reality in our state, delivering long overdue fairness and legal security to thousands of New Yorkers.

The New York State Assembly had passed same-sex marriage bills before in 2007 and in 2009, but the bills were unable to pass the Senate [JURIST reports]. Before the passage of the Marriage Equality Act, New York recognized such marriages performed in other states. Earlier this year, the New York State Supreme Court Appellate Division, First Department upheld a lower court decision [JURIST reports] allowing the surviving spouse of a same-sex marriage legally performed in Canada to inherit the deceased spouse's estate. With the legislation, New York becomes the seventh US jurisdiction to allow same-sex marriage. Same-sex marriage is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].




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EU gives final approval to Croatia membership
Daniel Makosky on June 25, 2011 10:00 AM ET

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[JURIST] The European Council [official website] on Friday agreed [meeting report, PDF] to grant Croatia [EC materials] EU membership following six years of accession negotiations. The decision calls for negotiations to close [press release] by the end of the month and the accession treaty to be signed by year's end, allowing for the country to become the 28th member of the EU on July 1, 2013. In the interim, EU leaders strongly encouraged Croatia to continue pursuing crucial reform initiatives. Announcing the development, Council president Herman Van Rompuy [BBC profile] remarked [press release]:
[Croatia] has turned the fundamentals of the State inside out to be fully aligned with European standards. It performed impressively through the past months—even up until the last weeks and days. Moreover, we are confident that you will continue to pursue the necessary reforms with the same vigor until the accession date, and beyond. Croatia's achievement serves as an inspiring example for the other countries of the Western Balkans. Croatia demonstrates that with political will, a strong national consensus and dedicated work, it is possible to overcome the shadows of the past and to move towards membership of the European Union.
The European Commission (EC) [official website] formally recommended [JURIST report] Croatia for accession earlier this month. Countries still in formal negotiations for acceptance into the EU include Iceland, Macedonia, Montenegro and Turkey [EC materials]. It was also announced earlier this month that Serbia [EC materials] will become a candidate country next year [B92 report], with talks slated to open in the spring.

Croatia has been increasing efforts to reform their judiciary in order to gain accession to the EU. Earlier this month, Croatian authorities charged [JURIST report] former military commander and senior interior minister Tomislav Mercep [official profile, in Croatian] for war crimes committed against Serbians during the 1990s conflict in the Balkans. Amnesty International (AI) [advocacy website] released a report [text, PDF] calling for the prosecution of individuals responsible for war crimes a day prior to Mercep's arrest. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] investigating war crimes in the area. The entry talks resumed in October of that year after the ICTY declared that Croatia was fully cooperating [JURIST report].




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Conrad Black to return to prison for one year
Julia Zebley on June 24, 2011 3:16 PM ET

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[JURIST] Media magnate Conrad Black [CBC profile; JURIST news archive] was ordered to return to prison by the US District Court for the Northern District of Illinois [official website] on Friday, to serve 13 more months of his 42 month sentence. Judge Amy St. Eve [official profile], his original sentencing judge, said that although she was impressed by Black's rehabilitative efforts in prison, the sentencing guidelines mandated he serve his full sentence. Black was released on bond [JURIST report] last July after a Supreme Court ruling [opinion, PDF, JURIST report] in Black v. United States [Cornell LII backgrounder] constricted the application of the "honest services" doctrine [18 USC § 1346 text] only to cases of bribery and kickbacks. The US Court of Appeals for the Seventh Circuit [official website] then vacated [opinion, PDF; JURIST report] Black's two "honest services"-based convictions, but upheld counts of fraud and obstruction of justice, remanding the case to the Northern District of Illinois for re-sentencing. The re-sentencing hearings began in January [JURIST report]. Black may not return to prison for up to two months.

Last month, the US Supreme Court [official website; JURIST news archive] denied certiorari [JURIST report] in Black v. United States [docket; cert. petition, PDF] in which Black was seeking to have his remaining conviction overturned. Black was originally convicted on two counts of fraud and a third count of obstruction of justice after a jury acquitted him and his co-defendants of 15 other fraud counts. He appealed to the Supreme Court, which remanded [JURIST report] the case to the Seventh Circuit.




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UN applauds arrest of Guatemala genocide suspect
Maureen Cosgrove on June 24, 2011 2:47 PM ET

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[JURIST] The UN on Friday announced its approval [press release] of the arrest of a former top Guatemalan military figure accused of genocide, war crimes and crimes against humanity. General Hector Mario Lopez Fuentes, former chief of staff of Guatemalan armed forces from 1982-1983, is accused of directing military attacks against citizens, namely indigenous Mayans. Villages were destroyed and women and girls were systematically raped under his authorization. Fuentes was arrested last week [BBC report] and charged for his involvement in Guatemala's 36-year civil war [GlobalSecurity backgrounder]. Margot Wallstrom, the Secretary-General's Special Representative on Sexual Violence in Conflict, applauded the arrest:
The apprehension of General Lopez Fuentes sends a strong signal to all perpetrators that conflict-related sexual violence is not acceptable, and that justice will ultimately prevail. Sexual violence thrives on silence and impunity. Women have no rights if those who violate their rights go unpunished.
The UN also indicated that "the arrest sends a strong signal that justice can prevail in the Central American country."

The Guatemalan civil war resulted in more than 200,000 deaths, mostly among Guatemala's large indigenous population. According to a UN report released in 1999, the military was responsible for 95 percent of those deaths. In response to these violations, the Guatemalan government founded the National Compensation Program (PNR) in 2003 to deal with claims by civilians affected by the civil war. The PNR, after setting up its administrative structure, has begun to use its $40 million budget to work through a backlog of more than 98,000 civilian complaints. More than 1,000 complaints were filed in 2008. The PNR hopes to file the majority of the complaints within the next year. The Congress of Guatemala [official website, in Spanish] voted [JURIST report] to create the International Commission Against Impunity in Guatemala (CICIG) [official website] in April 2007, establishing an independent body [press release, in Spanish] to investigate organized crime and official corruption, including the country's civil war. In February 2008, the Guatemalan government announced plans to declassify documents [JURIST report] describing human rights abuses committed by its military during the civil war.




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Apple sues Samsung for patent infringement in South Korea court
Julia Zebley on June 24, 2011 2:46 PM ET

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[JURIST] Apple filed suit Friday in the Seoul Central District Court claiming that the Samsung [corporate websites] "Galaxy" line of products copies its iPhone and iPad technology. This follows similar suits by Apple in the US and suits by Samsung [JURIST reports] filed in South Korea, Japan and Germany. It is rumored that these disputes will ultimately be settled through alternative dispute resolution [Reuters].

Apple has been embroiled in litigation marked by trading accusations of patent infringement with Nokia [corporate website] as well, which was recently resolved [JURIST report]. Nokia and Apple entered into an agreement [press release], settling all patent disputes between the parties and directing Apple to pay royalties to Nokia for the term of the agreement. Both companies agreed to withdraw all complaints filed with the US International Trade Commission (ITC) [official website] and end 46 ongoing patent infringement disputes in various countries around the world.




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House votes down authorization for Libya mission but continues to provide funding
Zach Zagger on June 24, 2011 2:18 PM ET

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[JURIST] The US House of Representatives [official website] in two votes Friday sent contradictory messages over authorization of US military operations in Libya. First, the House overwhelmingly voted down 123-295 [roll call vote] a resolution [HJ RES 68] that would have authorized further operations in Libya. Then hours later, it voted down 180-238 [roll call vote] a measure [HR 2278] that would have defunded the operations, save for rescue and intelligence efforts to assist NATO. Even if the House had passed the measure, it had little chance of passing [LAT report] the Democratically controlled Senate [official website], as Majority Leader Harry Reid (D-NV) [official website] has already expressed support for the operations in Libya. Speaker of the House John Boehner (R-OH) [official website] had threatened to defund the mission after sending President Barack Obama [official website] a letter earlier this month warning him that he was within five days of violating the 1973 War Powers Resolution [50 USC § 1541 et seq.].

Obama disagrees with certain members of Congress regarding his legal authority to continue military operations in Libya. Obama's position is that he is not in violation [JURIST report] of the War Powers Resolution. His office maintains that US activities in Libya do not amount to "hostilities" because the US is only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. But earlier this week, it was reported that Obama came to this conclusion overriding the legal interpretations [JURIST report] of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites]. Jordan Paust [academic profile] of the University of Houston Law Center has argued [JURIST op-ed] that Obama is not violating the War Powers Resolution because that was only meant to limit his authority as Commander-In-Chief but in this case Obama is acting pursuant to his Executive authority under Article II [text]. He argues: "given the fact that treaties of the United States (such as the UN Charter) are supreme federal laws, it is evident that the President has constitutionally-based authority to faithfully execute US competencies under the Charter outside of the President's independent authority as Commander-in-Chief."




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UN investigators to asses Yemen human rights situation
Maureen Cosgrove on June 24, 2011 1:47 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Friday announced [text] that it plans to send a panel to investigate the human rights situation in Yemen [OHCHR backgrounder]. Three OHCHR experts will travel to Yemen next week [press release] for a 10-day stint to interview government officials, human rights defenders, victims of rights violations, members of the political opposition, religious leaders and other UN agencies about human rights abuses related to pro-democracy protests. The commission will compile recommendations for Yemeni officials and the international community and publish the report at the Human Rights Council in Geneva in September.

Rights groups have criticized Yemen for its handling of pro-democracy protests that have persisted since February. Amnesty International (AI) [advocacy website] released a report [text; PDF] in April urging the international community to pressure Yemeni authorities to investigate protestor deaths. Just days earlier, the OHCHR urged the Yemeni government [JURIST report] to discontinue using force against peaceful protesters. The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. Saleh, who agreed to step down in April [JURIST report], and his party, the General People's Congress (GPC), had 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. 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 website].




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US House approves patent reform bill
Julia Zebley on June 24, 2011 1:43 PM ET

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[JURIST] The US House of Representatives [official website] voted 304-117 Friday in favor of the America Invents Act [HR 1249 materials], the largest potential reform to the US patent system since 1952. If the bill passes it would replace the current "first inventor to use" system with a "first inventor to file" system, making US patents more like the European and Japanese systems. In turn, it also changes the way other inventors can challenge a patent, including revising the appeals system. A similar bill [bill materials] passed the Senate in January. The America Invents Act now goes to reconciliation where differences will be negotiated over between the House and Senate, and then to President Barack Obama, who is expected to sign the bill [CNN report].

There have been several significant legal decisions in patent law in the last few months. Earlier this month, the US Supreme Court [official website; JURIST news archive] unanimously ruled [opinion, PDF] against Microsoft [corporate website], holding that a patent will be invalidated only if the challenging party meets the "clear and convincing evidence" standard [JURIST report]. The court also held in a separate decision [JURIST report] that the Bayh-Doyle Act [35 USC §§ 200-212], which vests patent rights to universities for inventions from federally funded research, did not give Stanford University [academic website] superior rights to the invention of its employee and thus, the employee could transfer his invention rights to a third party. In May, the Supreme Court ruled [opinion, PDF] that induced patent infringement requires knowledge [JURIST report] that the induced acts constitute patent infringement. Also in May, the US Court of Appeals for the Federal Circuit [official website] restricted [opinion, PDF] the use of the "inequitable conduct" defense [JURIST report] for invalidating patents.




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DOD names new chief prosecutor at Guantanamo
Zach Zagger on June 24, 2011 11:02 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] Thursday announced [press release] the appointment of Army Brig. General Mark Martins [official profile] as the new chief war crimes prosecutor at Guantanamo Bay [JURIST news archives] as head of the Office of Military Commissions [official website]. Martins, who is currently serving in Afghanistan as the commander of the Rule of Law Field Force, is a graduate of Harvard Law and former Rhodes Scholar. He replaces Navy Capt. John Murphy, a Navy reservist, who is returning to his job as an assistant US Attorney in Louisiana. Martins is also one of two men [Miami Herald report] in President Barack Obama's interagency Detention Policy Task Force in charge of reviewing Guantanamo detainee files to close the Guantanamo detention facility. Before being deployed in Afghanistan, Martins served as deputy legal counsel for the chairman of the Joint Chiefs of Staff and worked as a staff judge advocate under Gen. David Patreaus. He also graduated first in his class from the US Military Academy at West Point in 1983. He will take charge of detainee prosecutions including the upcoming trial of self-proclaimed mastermind of the 9/11 attacks Khalid Sheikh Mohammed [BBC profile; JURIST news archive]. The case was transferred to military commission despite Obama's and US Attorney General Eric Holder's plan to try 9/11 suspects in civilian courts, after Congress imposed a series of restrictions [JURIST reports] barring the transfer of detainees to the US.

In March, a judge for the US District Court for the District of Columbia [official website] allowed a lawsuit against the Library of Congress (LOC) [official website] to continue on behalf of former Guantanamo prosecutor and former LOC employee Col. Morris Davis [official profile, PDF]. He argues that his termination by the LOC violated his constitutional rights, alleging it was due to his outspoken criticism of the military commissions, writing articles, giving speeches and testifying before Congress that the system is fundamentally flawed, specifically a high-profile piece [text] for the Wall Street Journal [official website]. In April of last year, the DOD 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.




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Rwanda genocide tribunal convicts 6, including first woman
Maureen Cosgrove on June 24, 2011 10:44 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Friday convicted and sentenced [judgment, PDF] six individuals, including the first female to be charged with genocide and crimes against humanity, in relation to the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. The six were charged with conspiracy to commit genocide, genocide, complicity in genocide, crimes against humanity including extermination, murder, persecution and other inhumane acts. The court also charged Pauline Nyiramasuhuko, former Minister of Women's Development and first female genocide criminal, and her son Arsene Shalom Ntahobali with rape. The court determined that the systematic killing of thousands of ethnic Tutsi authorized and facilitated by the individuals during the genocide amounted to crimes against humanity. Nyiramasuhuko was sentenced to life in prison based on the finding that she was guilty of seven of the 11 charges against her. The varying sentences for the other individuals range from 25 years in prison to life sentences. The six, who were arrested 16 years ago, will receive credit for time served.

The ICTR has tried a number of genocide suspects since its 1994 inception. The court sentenced [judgment summary, PDF; JURIST report] former Rwandan Armed Forces lieutenant Ildephonse Hategekimana [case materials] in December to life imprisonment after convicting him on charges of genocide and crimes against humanity. In November, the ICTR convicted [JURIST report] former Rwandan businessman Gaspard Kanyarukiga on charges of genocide and extermination as a crime against humanity and sentenced the 65-year-old to 30 years in prison. The ICTR's work has recently been hampered by a lack of resources, leading the tribunal to ask the UN for assistance [JURIST report] in October. The tribunal has faced adversity since its creation, including the shooting death [JURIST report] of one of the senior defense lawyers in July. Earlier this year, Joseph Nzirorea, former president of the Rwanda National Assembly and secretary general of the National Republican Movement for Democracy and Development, died while on trial [JURIST report] for conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, complicity in genocide, crimes against humanity and serious violations of Common Article 3 of the Geneva Conventions [text].




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Ukraine ex-PM Tymoshenko goes on trial for abuse of power
Julia Zebley on June 24, 2011 10:42 AM ET

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[JURIST] Ukrainian opposition leader and former prime minister Yulia Tymoshenko [personal website; JURIST news archive] went on trial Friday in the Pechersky District Court on abuse of power charges. Thousands of protesters [Guardian report] surrounded the building, supporting Tymoshenko and screaming that the judge was a "puppet." Tymoshenko criticized the judiciary herself [press release] several times: "This is a real gang of criminals. Some people wear prosecutor's uniforms, while others sit in black gowns. I appeal to you, slaves in gowns—remember that you are a court." The defense also filed motions to permit access to the press, to have a jury trial, to dismiss the case, to remove Judge Rodion Kirieyev and for an extra month to review the case materials [press releases]. The motion for press access was granted, but Kirieyev refused to recuse [press releases] himself twice. The motion for more time was denied. The motion for a jury trial was not ruled on. Tymoshenko's website also reported that the EU is watching the case closely [press release]. No one in the EU has released an official statement commenting on the trial, but last month, EU official Catherine Asthon [official profile] expressed concern [RIA Novosti report] that the latest charges against Tymoshenko were politically motivated. The court was recessed until Saturday [press release].

Earlier this week, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights (ECHR) [official website], alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argues that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival. In May, the Prosecutor General's Office (PGO) [official website, in Ukrainian] charged Tymoshenko [JURIST report] under Article 365 of the Criminal Code of Ukraine [text] with abuse of office [press release, in Ukrainian] in connection with signing gas import contracts with Russia. In Feburary, the PGO combined two separate criminal cases [JURIST report] against her and concluded the pre-trial investigation. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports] while in office by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up. Tymoshenko said the vans were successful in providing medical services to rural villages. The current combined case against her is not the first time she has been prosecuted. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Federal judge denies release of Taliban Guantanamo detainee
Maureen Cosgrove on June 24, 2011 9:33 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia on Thursday ruled [opinion, PDF] against the release of a former high-ranking Taliban [CFR backgrounder] official at Guantanamo Bay [JURIST news archive] despite a request from Afghanistan's Peace Council to release the prisoner. Judge Ricardo Urbina [official profile] denied a petition for writ of habeas corpus initiated by Khairullah Khairkhwa, a Taliban government media spokesman, governor and Cabinet minister. While the government contends that Khairkhwa provided material support to the Taliban, the detainee maintains he was merely a civilian administrator and did not participate in military operations. Urbina held that the government had shown by a preponderance of the evidence that Khairkhwa participated in clandestine meetings to discuss Iranian weapon and military support related to operations against the US, and had specialized knowledge about locations of personnel and military operations. Urbina also indicated that Khairkhwa's involvement with the Taliban was prolonged:
Despite the petitioner's efforts to portray himself as a reluctant, marginal figure within the Taliban, the record indicates that the petitioner rose to the highest level of the Taliban and had close ties to Mullah Omar, who repeatedly appointed the petitioner to sensitive, high-profile positions. Indeed, even after the U.S.-led invasion of Afghanistan, the petitioner remained within Mullah Omar's inner circle, despite the fact that Mullah Omar had limited his contacts to only his most trusted commanders.
Afghanistan's Peace Council, a commission set up by Afghan President Hamid Karzai [BBC profile, JURIST news archive], asked that Khairkhwa be returned to Kabul [Telegraph report] in February to facilitate peace talks between the government and Taliban leaders. Khairkhwa has been at Guantanamo for more than nine years.

There have been over 200 writs of habeas corpus filed on behalf of Guantanamo Bay detainees. In June, a judge for the US Court of Appeals for the District of Columbia Circuit [official website] overturned [opinion, PDF; JURIST report] the release of Yemeni Guantanamo Bay detainee Hussein Salem Mohammed Almerfedi [NYT profile], an alleged al Qaeda [GlobalSecurity backgrounder] supporter. A federal appeals court denied habeas corpus [JURIST report] to Guantanamo Bay detainee Musa'ab Omar al-Madhwani in May, concluding that he was lawfully detained for being part of al Qaeda. In March, an appeals court blocked the release [JURIST report] of Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman by overturning [opinion, PDF] a district court decision that claimed the government had failed to prove prove by a preponderance of the evidence that Uthman had received and executed orders from al Qaeda. 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. The Supreme Court denied his petition in April.




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US lawmakers introduce bipartisan bill to legalize marijuana
Julia Zebley on June 24, 2011 9:13 AM ET

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[JURIST] Two members of the US House of Representatives [official website] introduced a bill [HR 2306 text, PDF] Thursday to legalize marijuana nationally and leave regulation to the states. Representatives Barney Frank (D-MA) and Ron Paul (R-TX) [official websites] wrote the Ending Federal Marijuana Prohibition Act of 2011 to amend the Controlled Substances Act [text], removing marijuana, hemp and cannabis from the schedule. Currently, marijuana is a Schedule 1 drug, which the government believes has a high potential for abuse, no medical merit and is unsafe to use with medical supervision. If the bill passes, like alcohol and tobacco, states would be able to regulate the substance or prohibit it completely. In a conference call [The Reason blog], Frank expressed that the bill's passage is unlikely, but felt its introduction represented progress. He also noted that the public is receptive to marijuana legalization while the government is not. Recently, the US government has released several statements renewing their commitment to the "War on Drugs" in reaction to the Global Commission on Drug Policy [official website] releasing a report [text, PDF] recommending international legalization of cannabis, marijuana and other drugs [JURIST report]. The US Office of National Drug Policy (ONDCP) [official website] released a statement in response, denouncing the report [text]: "Legalization remains a non-starter in the Obama Administration because research shows that illegal drug use is associated with voluntary treatment admissions, fatal drugged driving accidents, mental illness, and emergency room admissions."

Earlier this month, the Connecticut Senate [official website] approved SB 1014 [text, PDF; materials] which provides for the decriminalization of small amounts of marijuana [JURIST report]. Last month, Arizona Governor Jan Brewer (R) [official website] filed a federal lawsuit [JURIST report] seeking a declaratory judgment over the legality under federal law of the state's legalization of medical marijuana [JURIST report] passed in November 2010. Medical marijuana is currently legal in 14 US states. In October 2009, US Attorney General Eric Holder [official website] issued guidelines for a new policy [JURIST report] for investigating and prosecuting state-sanctioned medical marijuana use. Those guidelines reflect a pledge made by Holder in March to stop federal raids [JURIST report] on medical marijuana dispensaries that comply with state laws. However, Holder has emphasized that if a state legalizes drugs for recreational use, federal law will be enforced [LAT report], as California attempted to legalize marijuana last year [JURIST report].




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Maryland court recognizes spousal privilege for same-sex married couple
Zach Zagger on June 24, 2011 8:55 AM ET

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[JURIST] A Maryland court ruled Thursday that the spousal privilege preventing spouses from being compelled to testify against one another applies to a lesbian couple married in Washington DC, recognizing the rights of same-sex married [JURIST news archive] couples though Maryland does not allow the practice. Judge Donald Beachley of the Maryland Washington County Circuit Court [official website] ruled that the spouse of a same-sex married couple was privileged [Herald-Mail report] from testifying against her spouse in a criminal domestic violence case. Maryland does not allow same-sex marriages, but the couple was married in Washington DC, where such marriages are legal, in August 2010. Deborah Snowden was charged with assault and reckless endangerment for allegedly threatening Sha'rron Snowden with a knife. When called to the stand, Sha'rron refused to testify against Deborah invoking the spousal privilege. Beachley then suspended the proceedings to hear arguments on whether the privilege could be invoked. Beachley ruled under the "principle of comity" between states, following Maryland's law which usually recognizes valid marriages from other states even if those marriages would not be valid if performed in Maryland. The American Civil Liberties Union (ACLU) and Lambda Legal [advocacy websites] filed a joint brief [text, PDF] arguing that Sha'rron should not be compelled to testify by virtue of the spousal privilege. Susan Sommer, Director of Constitutional Litigation at Lambda Legal, lauded [press release] the decision: "Long-standing Maryland law recognizes a valid marriage even if it had not been entered in Maryland. The court's ruling treats this couple like any other married Maryland couple and should guide the way for other Maryland courts."

Earlier this month, the US Bankruptcy Court for the Central District of California [official website] ruled [JURIST report] that the Defense of Marriage Act (DOMA) [text; JURIST news archive], a federal law barring same-sex marriage, is unconstitutional. The same-sex couple had tried to file for Chapter 13 joint bankruptcy for married couples. The court applied a "heightened scrutiny" standard but found it did not even meet rational basis review. Same-sex marriage continues to be a controversial issue among states. Also this month, a federal judge in California refused to vacate [JURIST report] an earlier ruling finding that Proposition 8 [JURIST news archive], California's ban on same-sex marriage, was unconstitutional. In April, the Delaware House of Representatives voted in favor of same-sex civil unions while the Indiana [JURIST reports] Senate approved an amendment to its state constitution banning same-sex marriage.




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UN SG condemns Bahrain for activist sentences
Maureen Cosgrove on June 24, 2011 8:51 AM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official website] on Thursday condemned [press release] a Bahraini court for sentencing 21 human rights advocates, political activists and opposition leaders to harsh punishments. The court sentenced the protestors [profiles, PDF] to lengthy prison sentences, including life terms. Ban urged Bahraini authorities to comply with international human rights obligations such as ensuring the right to due process and a fair trial and permitting the defendants to appeal their sentences. A spokesperson for the secretary-general relayed Ban's sentiments [text] about how Bahraini authorities should proceed:
The Secretary-General hopes that the Bahraini authorities will do everything possible to create an environment conducive for the start of a concrete national dialogue announced by His Majesty King Hamad bin Issa Al Khalifa, and believes that it should be genuine, inclusive and lead to tangible outcomes which address the legitimate aspirations of all Bahrainis.
The sentences were imposed as a result of Bahrain's crackdown on the recent wave of demonstrations calling for democracy in the country.

Bahrain's Lower National Safety Court sentenced the 21 activists [JURIST report] on Wednesday for anti-government protests conducted earlier this year. The convicted were charged [charges, PDF] with "plotting to topple the leadership of the Kingdom of Bahrain," but rights organizations have denied this, stating that all convicted were protesters exercising freedom of speech. The National Safety Courts, special military tribunals, were instituted in mid-March under King Hamad bin Isa al-Khalifa's [official profile] three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW) [advocacy website]. The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court sentenced four protestors to death, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men, who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations. In an effort to quiet protests that have been ongoing since March, last week, the Justice Ministry declared they would take action to lift the ban [JURIST report] on the leading opposition party, the National Democratic Action Society [website]. The leftist opposition party, known as Waad and aligned with the largest Shi'ite opposition group, was shut down in April during the pro-democracy protests [JURIST report].




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Ninth Circuit allows corruption trial of Arizona ex-congressman
Chris Morris on June 23, 2011 3:45 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday rejected [opinion, PDF] former US representative Richard Renzi's (R-AZ) appeal to have an extortion case against him dismissed. Renzi is under indictment for allegedly using his political office to profit from a real estate deal in 2005. He argued that negotiations regarding the deal, entered as evidence to a grand jury, were privileged "legislative acts" under the Speech or Debate Clause of Article I [text] of the US Constitution and therefore the evidence must be excluded and the case dismissed. The Ninth Circuit did not agree:
We recognize, as we must, that the Speech or Debate Clause is a privilege that "has enabled reckless men to slander and even destroy others with impunity." But the Supreme Court has made equally clear that the Speech or Debate Clause does not "make Members of Congress supercitizens, immune from criminal responsibility." Because we cling to "the precise words" of the Court's own Speech or Debate jurisprudence and "the sense of those cases, fairly read," we conclude that Renzi's actions fall beyond the Clause's protections. We therefore deny Renzi the relief he seeks.
The decision also added a racketeering charge that had previously been removed. Renzi's trial date has not yet been scheduled.

In June 2010, the US District Court for the District of Arizona [official website] threw out recorded conversations [Arizona Daily Sun report] of Renzi and one of his attorneys, ruling that the recordings were a violation of Article III [text] and the Fourth Amendment [text]. The court, though, ruled that the indictment would remain. When Renzi was indicted in 2008 [JURIST report], prosecutors alleged he used his position on the House Natural Resources Committee [official website] to block federal land transfer deals unless land owned by Texas real estate investor James W Sandlin was included. In exchange, Renzi allegedly received over $700,000 in payoffs. Sandlin was also indicted on charges of extortion, fraud, money-laundering and conspiracy and has since pleaded guilty.




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Congo court sentences 4 to death for rights activist murder
Maureen Cosgrove on June 23, 2011 2:49 PM ET

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[JURIST] A military court in the Democratic Republic of the Congo (DRC) [BBC backgrounder] on Thursday sentenced four policemen to death for killing prominent human rights activist Floribert Chebeya last year. Cherbeya, a member of the activist group Voice of the Voiceless, was found dead in his own car [BBC report] in June 2010. Eight men, all DRC policemen, were accused of being involved in the murder and were subsequently arrested. The trial for five of the men began in November [JURIST report], while three remained at large. The court sentenced [BBC report] one of the eight to life in prison, acquitted three, and sentenced the three at-large individuals to death. The Chief of Police Intelligence at the time of the murder, Colonel Daniel Mukalay, was the highest ranking of the suspects and was sentenced to death for planning the assassination.

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




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ICC to decide whether to issue Gaddafi arrest warrant
Zach Zagger on June 23, 2011 1:51 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] said Thursday it will decide [press release] whether it will issue arrest warrants for Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two high-ranking officials on allegations of war crimes. The Pre-Trial chamber will deliver is decision on the application for warrants against Gaddafi, his son Saif al-Islam, and his brother-in-law Abdullah al-Sanussi in a public hearing Monday in The Hague. Chief Prosecutor Luis Moreno-Ocampo [official websites] said his office has gathered "direct evidence" [CNN report] that the men committed crimes against humanity in connection with efforts to quell the three-month old Libyan revolt. Moreno-Ocampo said the evidence shows Gaddafi personally ordered attacks on civilian protestors and that his forces used live ammunition on crowds, attacked civilians in their homes, used heavy weapons against people in funeral processions and placed snipers to shoot those leaving mosques after prayer services. Libya has said it does not recognize the jurisdiction of the ICC and will ignore the warrants if issued. Moreno-Ocampo announced [JURIST report] last month that his office was pursuing arrest warrants against Gaddafi and the two others in his "inner circle." He said Saif al-Islam was acting as Gaddafi's "defacto Prime Minister" and called al-Sanussi Gaddafi's "right-hand man" and "executioner." At that time, Moreno-Ocampo said his office was almost prepared for trial, having collected quality testimony from some who have fled Libya.

There have been numerous allegations of war crimes and human rights violations over the Libyan revolt which has persisted since February. Last week, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports] earlier this month on its findings. The report said Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack." Also this month, Human Rights Watch (HRW) [advocacy website] expressed concern over the arrests of dozens of civilians by Libyan opposition authorities. HRW called on the National Transitional Council (NTC), the opposition ruling body in Libya with de facto control over eastern Libya, to provide civilian detainees with full due process rights, access to counsel and the ability to challenge their detention before independent judicial authorities.




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Denmark court extends sentence of Muhammad cartoonist attacker
Julia Zebley on June 23, 2011 1:50 PM ET

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[JURIST] A Danish court on Wednesday sentenced Somali Islamist Muhideen Mohammed Geele to an additional year in prison [Stiftstidende Reuters, in Danish] for his 2010 attack on Kurt Westergaard, illustrator of the controversial 2005 cartoon depicting the Prophet Muhammad [BBC backgrounder; JURIST news archive] as a suicide bomber. Geele had already been sentenced to nine years in prison [JURIST report] for the attack. In Denmark, crimes involving an additional infliction of terror typically attach a 12-year sentence, but the court lowered Geele's sentence to 10 years because he had attacked one individual rather than a group of civilians. Geele was convicted [Copenhagen Post report] on charges of attempted murder and terrorism for breaking into [JURIST report] Westergaard's home and threatening him with an axe and knife.

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




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ICC prosecutor requests permission to investigate Ivory Coast violence
Chris Morris on June 23, 2011 1:29 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] officially requested permission from ICC judges Thursday to begin investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed in post-election violence [BBC backgrounder; JURIST news archive] since last November. Moreno-Ocampo said that thousands have been killed [ICC press release] and hundreds detained and raped in the months-long struggle between ousted leader Laurent Gbagbo [BBC profile] and rival President Alassane Ouattara [BBC profile] after Gbagbo refused to give up power. If Moreno-Ocampo is allowed to investigate, this would be his seventh inquiry into African conflicts and the first investigation into a state not party to the Rome Statute [official website], which gives the ICC jurisdiction upon referral by the Security Council [official profile]. The Ivory Coast, however, after a lettered appeal [JURIST report] by Ouattara to the ICC to open an investigation, has given the ICC jurisdiction. Moreno-Ocampo will send a security assessment team to the Ivory Coast on Monday and has not yet determined who is at fault for the violence.

The Ivory Coast announced earlier this month it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo earlier this month. In April, Human Rights Watch [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Supreme Court rules guilty plea sentence may be reduced if guidelines change
Maureen Cosgrove on June 23, 2011 1:10 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Freeman v. United States [Cornell LII backgrounder; JURIST report] that an individual whose sentence is imposed under a plea agreement may be eligible for a reduced sentence if the US Sentencing Commission (USSC) [official website] subsequently alters the sentencing guidelines. The Sentencing Reform Act of 1984 (SRA) [text] allows the USSC to create and amend Federal Sentencing Guidelines [materials], and 18 USC § 3582(c)(2) [text] permits a defendant to move for a sentence reduction if the USSC reduces the sentencing guideline after the defendant was sentenced. The Supreme Court, in a plurality, written by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer, held that this section of the SRA also permits an individual who agreed to a plea bargain to move for a sentence reduction if the sentencing court "based" the sentencing on the guideline recommendations. Petitioner William Freeman was indicted for several crimes, including possession with intent to deliver cocaine base, and agreed to serve eight years and eight months in prison in exchange for his guilty plea. The district court accepted that agreement, and, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (FRCP) [text, PDF], the sentence followed federal sentencing guidelines and was binding on the court. Three years into Freeman's sentence, the USSC retroactively reduced the sentencing guidelines for crack cocaine possession in order to reduce the disparity between crack and powder cocaine offenses. The US Court of Appeals for the Sixth Circuit held that defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive guideline amendments. In reversing the appeals court's decision, the Supreme Court looked at the SRA, FRCP and sentencing guideline policy statements to conclude that defendants can move to reduce sentences imposed pursuant to a plea bargain. The plurality reasoned that because courts typically accept plea agreements based on an evaluation of the guideline's recommended sentence, the SRA applies to 11(c)(1)(C) agreements. In Freeman's case, the court did in fact rely on the sentencing guidelines, and Freeman is permitted to move for a reduction of his sentence.

Justice Sonia Sotomayor, in her concurring opinion, argued that courts do not necessarily factor in sentencing guidelines when determining whether to implement a plea agreement. However, when a court "expressly" or "evidently" relies on the sentencing guidelines, as in Freeman's case, defendants should be permitted to move for a reduced sentence. Chief Justice John Roberts, along with Justices Antonin Scalia, Samuel Alito, and Clarence Thomas, dissented, agreeing with Stomayor's controlling opinion and suggestion that courts do not accept plea agreements "based on" sentencing guidelines, but disagreed with Sotomayor and the plurality's conclusion that Freeman could petition for a reduced sentence, concluding that "parties entering a Rule 11(c)(1)(C) plea agreement must take the bitter with the sweet."




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Supreme Court rules drug privacy law violates free speech
Julia Zebley on June 23, 2011 12:52 PM ET

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[JURIST] The US Supreme Court [official website] on Thursday voted 6-3 to affirm [opinion, PDF] the lower court in Sorrell v. IMS Health [Cornell LII backgrounder; JURIST report], finding Vermont's Prescription Confidentiality Law [text] a violation of freedom of speech under the First Amendment [text]. The law attempted to stifle the common practice of drug manufacturers gathering prescription records from pharmacies and using them to target advertisements to doctors. The pharmacies release the information freely and publicly, although any identifying information for patients is redacted. The Vermont law made it illegal for pharmacies to do this without the patient's consent. Justice Anthony Kennedy's majority opinion ruled that this was both a content and speaker based restriction on free speech and does not pass a "heightened" scrutiny standard, primarily because the statute allows records to be used for educational and state purposes, but not marketing.
The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont's statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information's use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
The Court also rejected arguments that "heightened" scrutiny is inappropriate due to the law being characterized by Vermont as "mere commercial regulation."

Justice Stephen Breyer dissented, writing that "this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise." He rejected the Court's use of "heightened" scrutiny, including a long history of intermediate scrutiny applied when the government directly restricts commercial speech. Breyer cautioned the Court not to return to the era of Lochner v. New York, when the Court judged every individual regulation or State law that could interfere with a business' "liberty." He also characterized the harm in the case as "modest at most."




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Supreme Court holds federal law preempts in generic drug cases
Julia Zebley on June 23, 2011 12:00 PM ET

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[JURIST] The US Supreme Court [official website] on Thursday voted 5-4 to reverse [opinion, PDF] the lower court in PLIVA, Inc. v. Mensing [Cornell LII backgrounder; JURIST report], holding that since generic drugs and their warnings are managed by the Food and Drug Administration (FDA) [official website], their federal regulations on warning labels preempt state law on warning labels. Justice Clarence Thomas delivered the opinion of the court, except for Part III-B-2, which only Chief Justice John Roberts, Justice Samuel Alito and Justice Antonin Scalia join. The court found impossibility in meeting both the state's higher standard and the FDA's standard of identical labels between brand name and generic drugs and denied plaintiffs' claim under their respective states' tort laws. Justice Sonia Sotomayor wrote a dissent decrying the broadening of the impossibility standard.
We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish pre-emption. The Food and Drug Administration (FDA) permits—and, the Court assumes, requires—generic-drug manufacturers to propose a label change to the FDA when they believe that their labels are inadequate. If it agrees that the labels are inadequate, the FDA can initiate a change to the brand-name label, triggering a corresponding change to the generic labels. Once that occurs, a generic manufacturer is in full compliance with both federal law and a state-law duty to warn. Although generic manufacturers may be able to show impossibility in some cases, petitioners, generic manufacturers of metoclopramide (Manufacturers), have shown only that they might have been unable to comply with both federal law and their state-law duties to warn respondents Gladys Mensing and Julie Demahy. This, I would hold, is insufficient to sustain their burden.
She went on that the opinion is dangerous and holds a multitude of consequences for current tort law surrounding drugs. Justice Thomas responded in a footnote that the situation is too rare to impact the drug industry significantly.

PLIVA, Inc. v. Mensing was a consolidated case with Actavis Elizabeth, LLC v. Mensing and Actavis v. Demahy. In all the cases, petitioners were prescribed a brand name drug and instead received the generic version. The drugs, created to treat digestive tract disorder, sometimes caused a severe nervous system disorder with continued use. At the time, in 2001, this did not appear on the brand name label, and thus, due to FDA regulations that require generic drugs to match the brand name, did not appear on the generic label. The manufacturers claims this prevented them from creating more accurate warnings. Petitioners took the generic drug manufacturers to court, citing a higher standard in their state laws.




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Supreme Court rules in Confrontation Clause case
Zach Zagger on June 23, 2011 11:29 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Bullcoming v. New Mexico that the Confrontation Clause [Cornell LII backgrounders] does not allow laboratory reports containing testimonial certification to be entered into evidence against a defendant without the testimony of the analyst who personally observed the test and certified the report. Donald Bullcoming was arrested for Driving While Intoxicated (DWI). A forensic laboratory report of a machine-generated blood test showed his blood alcohol content (BAC) was above the legal limit. The court reversed the Supreme Court of New Mexico [official website] which allowed the laboratory report, despite holding that it was "testimonial," because another analyst familiar with the testing device and procedures used, but had neither participated in nor observed the testing, was called to validate the report. The state never asserted that the analyst who conducted the tests was unavailable, but the record showed he was placed on unpaid leave for an undisclosed reason. The majority opinion by Justice Ruth Bader Ginsburg held that the laboratory report depended on live in-court testimony as to its veracity. The other analyst did not satisfy this requirement because he did not take part in the actual testing. The court also noted that this prevented the defense from cross-examining the testing analyst as to why he was placed on unpaid leave. The court also rejected the state's argument that the laboratory report was not testimonial because it was was merely the results of a machine-generated test. Ginsburg's opinion held the laboratory report was testimonial under the Court's holding in Melendez-Diaz v. Massachusetts [JURIST report] because of the certification formalities attending the report. However, Justice Anthony Kennedy argued in the dissenting opinion that the majority makes the "misstep" of extending the holding from Melendez-Diaz, in which there was no one present to testify at trial, to this situation where "a knowledgeable representative of the laboratory was present to testify and to explain the lab's processes and the details of the report." He said:
The procedures followed here, but now invalidated by the Court, make live testimony rather than the solemnity of a document the primary reason to credit the laboratory's scientific results. Unlike Melendez-Diaz, where the jury was asked to credit a laboratory's findings based solely on documents that were quite plainly affidavits, here the signature, heading, or legend on the document were routine authentication elements for a report that would be assessed and explained by in-court testimony subject to full cross-examination. The only sworn statement at issue was that of the witness who was pre-sent and who testified.
Justice Sonia Sotomayor, with whom Justice Elena Kagan joined, filed a concurring opinion disagreeing with Ginsburg's holding that lab report was testimonial because of its formalities and because applying the Confrontation Clause to forensic evidence is not an undue burden on the State. Sotomayor argued instead that laboratory reports are testimonial when in addition to formality, they are created with the purpose of use at trial against the defendant.

During oral arguments [transcript, PDF; JURIST report] last March, the justices repeatedly questioned counsel for New Mexico regarding their assertion that there is a difference between an affidavit offered by an analyst, as in Melendez-Diaz, and a purely machine-produced report. Justice Sonia Sotomayor, focusing on the certification of both documents, pressed counsel as to how they could be considered distinguishable, saying, "I'm sorry, could you tell me what that means? Why is it different than the affidavit? It's certified, and my understanding of the dictionary meaning of certification is that that's an attestation as to the truth of the statements contained therein. That's the common definition." Justice Antonin Scalia, focusing on the fact that the analyst had been placed on leave without pay during the trial, stated perhaps the most important reason why the defendant should have been permitted to cross examine the analyst, "Does the defense know why it was leave without pay? Could the defense have found out in cross-examination that the reason he was leave without pay because he was—had shown himself to be incompetent, and they were in the process of firing him? I don't know whether that's true, but wouldn't that be important to the defense?"




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Supreme Court rules on employer liability claims
Maureen Cosgrove on June 23, 2011 11:18 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in CSX Transportation v. McBride [Cornell LII backgrounder; JURIST report] that a Federal Employers' Liability Act (FELA) [text] railroad negligence claim does not require proof of proximate cause. Respondent Robert McBride worked as a railroad engineer for petitioner CSX Transportation [corporate website]. McBride initiated a FELA claim, alleging that CSX negligently required him to use unsafe switching equipment and failed to train him to operate that equipment, both of which, he claims, led to a debilitating hand injury he sustained while on the job. At trial, the jury was not instructed on "proximate cause" because FELA renders railroads liable for employees' injuries or deaths "resulting in whole or in part from [carrier] negligence." CSX appealed after the jury found in favor of McBride. The US Court of Appeals for the Seventh Circuit affirmed the district court decision, declining to hold [opinion, PDF] that common-law proximate causation is required to establish liability under FELA. The Supreme Court affirmed the appeals court decision. Justice Ruth Bader Ginsburg, writing for the majority, noted that its decision in Rogers v. Missouri Pacific R. Co. [text] could not have been read to implement a "proximate cause" standard of causation in FELA lawsuits. Rather, the Rogers court announced the "any part" test, which asks whether "negligence of the employer played any part at all" in bringing about the injury:
[T]he understanding of Rogers we here affirm "has been accepted as settled law for several decades." ... Countless judges have instructed countless juries in language drawn from Rogers. To discard or restrict the Rogers instruction now would ill serve the goals of "stability" and "predictability" that the doctrine of statutory stare decisis aims to ensure.
The court also looked at the statutory history of FELA and other precedential cases interpreting FELA's language to reach its conclusion.

Chief Justice Roberts, joined by Justices Antonin Scalia, Anthony Kennedy and Samuel Alito, argued in his dissent that the majority creates a limitless standard of causation for FELA claims and that the standard adopted by the majority is akin to a "but-for" test. Roberts pointed out that the Supreme Court has previously explained that in FELA cases, "[a]bsent express language to the contrary, the elements of a FELA claim are determined by reference to the common law." Because recovery for common law negligence has always required a showing of proximate cause, the same standard should apply to FELA claims. Furthermore, the dissent contends that the majority misinterpreted the Rogers decision, which, according to Roberts, was limited to cases of contributory negligence.




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Rights groups welcome verdict but criticize trial of Tunisia ex-president Ben Ali
Chris Morris on June 23, 2011 11:14 AM ET

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[JURIST] Three human rights groups released a joint statement [text, in French] Wednesday in support of the sentencing of former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] but also criticizing his trial as unfair. The International Federation of Human Rights [advocacy website], the Tunisian League of Human Rights and the National Council for Freedoms in Tunisia expressed approval [AFP report] of the 35-year jail sentences and $65.6 million fine handed down earlier this week [JURIST report] but also criticized the trial proceedings for not including Ben Ali and his wife, who are currently in exile in Saudi Arabia, for not including victims involved in the case, and for the unusually brief deliberations. The groups ultimately advocated reforms for "greater respect of the rights of the defense." "The opening of the trial of the former dictator," the groups stated, "conforms with the aspirations of the Tunisian people to justice, but the importance of this trial demanded that all conditions for a right to a fair trial should have been met first." The sentences will take effect despite the couple's exile and even though Saudi Arabia has ignored demands for extradition.

Ben Ali and his wife were also charged [JURIST report] with illegal possession of drugs and weapons, but the verdict for those charges will not be announced until June 30. Ben Ali fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule in which his family amassed substantial wealth [Reuters report] that many Tunisians say was at their expense. Ben Ali has denied the charges against him [JURIST report] which stem mostly from allegations that he authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. The uprisings in Tunisia and ousting of Ben Ali were the beginning of similar uprisings across the Middle East also resulting in the ousting of former Egypt president Hosni Mubarak [Al Jazeera profile; JURIST news archive].




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Supreme Court narrows bankruptcy judge jurisdiction
Julia Zebley on June 23, 2011 11:03 AM ET

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[JURIST] The US Supreme Court [official website] on Thursday voted 5-4 to affirm [opinion, PDF] the lower court in Stern v. Marshall [Cornell LII backgrounder; JURIST report], agreeing that the bankruptcy court did not have jurisdiction in this instance. The opinion, delivered by Chief Justice John Roberts, explained that the bankruptcy court judge has a limited role beyond bankruptcy's core proceedings, even as defined in 28 USC § 157(b)(2)(C) [text], and found the core proceeding listed in this case unconstitutional. Although one of the core proceedings is counterclaims, and the court found there was a statutory basis for the decision, they found that portion of the statute unconstitutional under Article III [text]. Since bankruptcy judges do not enjoy the tenure or salary stated under Article III, the Court ruled they cannot go beyond bankruptcy proceedings.
We recognize that there may be instances in which the distinction between public and private rights—at least as framed by some of our recent cases—fails to provide concrete guidance as to whether, for example, a particular agency can adjudicate legal issues under a substantive regulatory scheme. Given the extent to which this case is so markedly distinct from the agency cases discussing the public rights exception in the context of such a regime, however, we do not in this opinion express any view on how the doctrine might apply in that different context. What is plain here is that this case involves the most prototypical exercise of judicial power: the entry of a final, binding judgment by a court with broad substantive jurisdiction, on a common law cause of action, when the action neither derives from nor depends upon any agency regulatory regime. If such an exercise of judicial power may nonetheless be taken from the Article III Judiciary simply by deeming it part of some amorphous "public right," then Article III would be transformed from the guardian of individual liberty and separation of powers we have long recognized into mere wishful thinking.
Justice Antonin Scalia concurred in the opinion, stating that he believes "an Article III judge is required in all federal adjudications, unless there is a firmly established historical practice to the contrary," rather than the "public right" analysis Roberts utilized. Justice Stephen Breyer dissented, stating he believed the statute was constitutional.

The case involved deceased model Anna Nicole Smith's (Vickie Lynn Marshall) bankruptcy proceedings. The beneficiary of her late husband's estate, Pierce Marshall, attempted to collect as a creditor in her bankruptcy, claiming defamation. She filed a counterclaim for tortious interference in the gift her late husband, J. Howard Marshall, had attempted to bequeath her, to try and recover the $88 million that had been denied to her in prior estate proceedings. The US Court of the Appeals for the Ninth Circuit held [opinion, PDF] that the bankruptcy court exceeded its jurisdiction in ruling on the case. The case had returned to the Ninth Circuit after the Supreme Court's 2006 ruling in Marshall v. Marshall [Duke Law backgrounder; JURIST report] that federal courts can in some cases decide disputes which involve state probate laws.




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New Hampshire legislature overrides governor's veto of abortion notification bill
Chris Morris on June 23, 2011 10:07 AM ET

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[JURIST] The New Hampshire legislature voted Wednesday to override the governor's veto and approve legislation [HB 0329 text] requiring healthcare providers to notify parents or a judge 48 hours before performing an abortion [JURIST news archive] on a minor. Governor John Lynch [official website] vetoed the bill last week [press release], but it was passed [AP report] by a vote of 266-102 in the House of Representatives and 17-7 in the Senate [official websites]. While the bill includes an exception in the case of a "medical emergency," Lynch said he was "troubled by the lack of an exception for the victims of rape, incest and abuse."

The bill, to take effect January 1, passes just days after an Illinois appeals court ordered a lower court [JURIST report] to determine whether a similar law requiring a girl's guardians to be notified before she has an abortion should be enforced. The New Hampshire bill is the latest in a variety of abortion-related legislation this year. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging a South Dakota law requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry signed a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Iowa, Kansas and Idaho [JURIST reports].




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Controversial Afghan court overturns parliamentary election results for fraud
Zach Zagger on June 23, 2011 9:47 AM ET

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[JURIST] A special court in Afghanistan on Thursday overturned the election results of nearly 25 percent of the assembly seats due to poll fraud in last September's parliamentary elections [IEC backgrounder]. Head of the special court Sediqullah Haqiq announced the ruling [Reuters report] that 62 out of the 249 legislators in the Wolesi Jirga [official website] elected last year have to vacate their seats and be replaced, sending the government into turmoil just as the US announced a major troop withdrawal. Afghan President Hamid Karzai [official profile, JURIST news archive] set up the special court by decree, which critics claim was to invalidate election gains made by his political opponents. Karzai's ethnic group and the base of the Taliban was underrepresented in the elections. Furthermore, the constitutional authority for the special court is in question, and it is unclear whether there can be any appeal. Haqiq announced the ruling as "final" but ousted legislators are submitting letters to the country's Supreme Court. Enforcement of the ruling is also unclear as it orders the Independent Election Commission (IEC) [official website] to disqualify the legislators whose elections it deems invalid, but the IEC does not recognize the legitimacy [AFP report] of the special court. Last September's election was marred by widespread allegations of fraud, as was the 2009 presidential election [JURIST news archive] in which Karzai came to power.

With the US withdrawing troops, ongoing disputes over irregularities in last September's parliamentary elections have raised doubts about the stability of the Afghan government. Last January, Karzai postponed the seating [JURIST report] of Parliament following a request by the special court for more time to look into allegations of fraud surrounding the elections. Karzai had promised [JURIST report] to have the special court review the election results in time to seat the election by the original January deadline. But the IEC claims that the special does not have legal authority to question the results that it certifies because the law says it has the final say in determining the elections results. In November, the Afghanistan Electoral Complaints Commission (ECC) [official website] disqualified 21 candidates [JURST report] for electoral fraud after finding widespread voting irregularities in 12 provinces. Of the disqualified candidates, 19 had either won or were leading in their districts, seven of which were incumbents, and two were second place finishers in districts where the first place finisher was also disqualified. In October, the IEC invalidated 1.3 million votes [JURIST report], nearly a quarter of the 5.6 million votes cast nationwide, due to findings of fraud. The IEC found that the 2,543 polling stations where the votes had been cast did not follow IEC procedures.




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Ontario appeals court stays medical marijuana possession ruling
Maureen Cosgrove on June 23, 2011 9:44 AM ET

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[JURIST] A judge for the Court of Appeal for Ontario stayed an April 11 ruling [text] that the country's marijuana laws are unconstitutional. Justice David Taliano of Ontario's Superior Court of Justice [official website] invalidated [JURIST report] the Marihuana Medical Access Regulations (MMAR) [text] in April, finding that the program's mechanisms for licensing patients to access medical marijuana [JURIST news archive] are insufficient. These inadequate licensing procedures led Taliano to strike down portions of the Controlled Drugs and Substances Act [text] that criminalize marijuana growth and possession. The Crown appealed [Montreal Gazette report] the Superior Court decision and the appeals court is currently waiting to hear that appeal. Taliano had ordered that Ottawa fix the medical marijuana program within 90 days or face the possible legalization of medical marijuana. The suspension of the lower court ruling effectively prevents these results from going into effect until the appeal court rules on the matter, which will likely take place in the fall [Toronto Sun report].

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




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Dutch court acquits politician in hate speech case
Julia Zebley on June 23, 2011 9:30 AM ET

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[JURIST] Dutch politician Geert Wilders [personal website; JURIST news archive] was acquitted of all charges [judgment text, in Dutch] on Thursday, the court finding his anti-Islam statements were not hate speech or discriminatory. Wilders has made several "anti-Islam" comments as a political official, including: several comments similar to "I don't hate Muslims, I hate Islam"; comparing the Koran to Mein Campf and calling for it to be banned; proposing a tax on wearing a hijab, or burqa; proposing a halt to Muslim immigration to the Netherlands; and creating the film Fitna [IMDB backgrounder], where terrorist attack images are juxtaposed with quotations from the Koran. The court's judgment stated that in the larger context of the immigration debate, statements against Islam were permissible, especially since his statements were not made against individuals or even groups of people, but the religion itself.
[S]uspect, as a politician, made the remarks that through his eyes, there are evil aspects of Islam and the Koran. When the alleged statements ... are viewed, both the wording and in conjunction with other statements, most of these statements that can only be seen as on Islam and the Koran. The suspect in these statements directed them against the faith and not against people (Muslims) and it can not be proven legally and convincingly that he incites hatred with these statements and/or discrimination against Muslims, as he was charged with. Regarding several statements, the court considers that these statements also include criticism of individuals, especially politicians, who in the opinion of the accused, do not recognize evil aspects of Islam. These (parts of) the statements can not therefore also be brought under incitement to hatred or discrimination against people because of their religion.

The original parties are planning to sue the Netherlands in an international court [NRC report] in reaction to the verdict. Reactions from Dutch figures has been mixed [NRC report], with equal amounts praising the decision as a victory for free speech and decrying the legitimization of hate speech. The Wilders case was analyzed by Gerolf Hagens [Teamleider, Kaveity and Kaveity] in Geert Wilders trial explores new frontiers of Dutch politics, society and jurisprudence [JURIST op-ed].

In May, the court rejected claims by Wilders [JURIST report] that the hate speech charges [prosecution materials, in Dutch] against him should be dropped over claims of bias. Wilders claimed that one of the judges had tried to convince [AFP report] the defense's expert witness to support the claims at a 2010 dinner party. While the court allowed 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. In March, an Amsterdam court rejected Wilders' claims of improper venue, ruling that the Amsterdam court has the authority to judge the case, given that the alleged statements were committed within its jurisdiction. In February, 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. 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.




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Turkish military officials arrested in coup investigation
Maureen Cosgrove on June 23, 2011 9:10 AM ET

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[JURIST] Turkish authorities on Wednesday arrested two military officials alleged to have been involved in the Balyoz Security Operation Plan ("Sledgehammer" plot) [Taraf report, in Turkish; JURIST news archive], a military plot to overthrow the Islamic-rooted government. Lieutenant General Ziya Guler and officer Bulent Akalin were arrested after appearing in court [UPI report] to testify about documents related to the coup that were discovered last year. The Taraf [media website] newspaper revealed last year that the plot included plans to bomb Istanbul mosques and provoke Greece into shooting down a Turkish plane in order to undermine the government.

The alleged coup plot highlights the continuing power struggle between Turkey's ruling Justice Development Party (AKP) [party website, in Turkish] and the country's secular nationalist establishment, the Turkish Armed Forces (TAF) [official website, in Turkish]. Turkish police detained more than 40 people in connection with the plot in February 2010 and continued to bring charges against alleged perpetrators, but released three high ranking military officials [JURIST reports] just days later. The "Sledgehammer" plot is similar to the Ergenekon [BBC backgrounder; JURIST news archive] conspiracy, in which the secular group is suspected of planning to overthrow [JURIST report] the AKP. The Ergenekon group is also alleged to be involved in bombings, political assassination plots and the death of journalist Hrant Dink [BBC obituary]. The probe into the Ergenekon conspiracy has been criticized as an attempt by the AKP to silence opposition and further its imposition of Islamic principles [DPA report; JURIST report] in violation of Turkey's secular constitution [text]. Trials against the Ergenekon group [JURIST report] opened over two years ago with more than 200 suspects in custody. The suspects include journalists, academics, army officers, policemen and Turkish Workers' Party [party website, in Turkish] leader Dogu Perincek [JURIST report].




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Third Circuit hears arguments in health care law challenge
Erin Bock on June 23, 2011 9:00 AM ET

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[JURIST] A three-judge panel of the US Court of Appeals for the Third Circuit [official website] heard arguments on Wednesday regarding the constitutionality of the new Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST news archive], specifically the individual mandate provision that penalizes all citizens who fail to purchase health insurance. New Jersey Physicians, Inc. [advocacy website], a nonprofit physician organization, filed the complaint [text, PDF] last year, arguing that PPACA goes beyond Congress's enumerated powers in the US Constitution by penalizing individuals who choose not to buy health insurance and preventing doctors from receiving payments directly from patients. The organization filed an appeal after a judge for the US District Court for the District of New Jersey [official website] dismissed the lawsuit [JURIST report] in December, ruling that the health care reform law does not cause the alleged harms and does not violate the Constitution. Wednesday's arguments [AP report] focused primarily on whether or not the plaintiffs had standing to sue since the law is not being implemented until 2014 and, therefore, the plaintiffs have not yet suffered economic harm.

Similar cases regarding the constitutionality of PPACA are being heard in federal courts across the nation. Earlier this month, the US Court of Appeals for the Eleventh Circuit [official website] heard arguments [JURIST report] regarding the constitutionality of the individual mandate. The appeal was brought by the Deparment of Justice (DOJ) after the US District Court for the Northern District of Florida [official website] struck down the entire health care law after it determined that the individual mandate exceeds Congress' authority [JURIST report] under the Commerce Clause. Also this month, the US Court of Appeals for the Sixth Circuit [official website] heard arguments [JURIST report] in a similar challenge to the constitutionality of the individual mandate brought by the Thomas More Law Center (TMLC) [advocacy website]. The appeal stems from a ruling upholding [JURIST report] PPACA and the contested requirement. Also this month, the US Court of Appeals for the Fourth Circuit [official website] decided it can rule on two challenges to PPACA after the court requested briefs [JURIST report] from all parties on whether the Anti-Injunction Act (AIA) [text], which prevents injunctions against taxes before the tax is imposed, would bar review of PPACA until it is implemented. The Fourth Circuit already heard arguments [JURIST report] in May to resolve a split decision between the US District Court for the Eastern District of Virginia ruling against the individual mandate and the Western District of Virginia dismissing a challenge [JURIST reports].




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Federal judge rules Florida death sentence policy unconstitutional
Erin Bock on June 23, 2011 7:48 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Florida [official website] ruled [opinion, PDF] Wednesday that Florida's procedure for imposing the death penalty is unconstitutional. Florida's death penalty statute [Fla Stat Ann § 921.141 text] provides that the jury in a capital case is to make an "advisory sentence" to the court based on whether certain aggravating factors exist that would warrant a sentence of either life imprisonment or death. These aggravating factors include whether the offense was for pecuniary gain, especially heinous or cruel, or whether the homicide was cold, calculated, and premeditated. The court either accepts or rejects this recommendation and then makes findings of its own regarding the existence of sufficient aggravating circumstances. In a 94-page decision, Judge Jose Martinez found that the method by which a death sentence is imposed in Florida violates the Sixth Amendment right to a jury trial because the jury should be making these findings, not the judge, due to the risk that the judge will base his decision on factors that were not even considered by the jury. To support his decision, Martinez cited Ring v. Arizona [opinion text], a 2002 Supreme Court case ruling that a similar scheme in Arizona was unconstitutional. The American Civil Liberties Union of Florida (ACLUFL) applauded the decision [press release]:
This is yet another sign of the systematic injustices that make up Florida's death penalty system—which is already plagued by wrongful convictions, racial inequities, the highest rate of exonerations and inadequate legal representation. ... It is past time to end state-sponsored executions and replace the unfair, unjust, and unconstitutional death penalty system with mandatory life in prison.
The case at issue is a 1991 murder-for-hire case involving Paul Evans, who was convicted of killing a woman's spouse in exchange for a camcorder, stereo and insurance money. After trial proceedings had concluded, the jury recommended 9-3 that Evans be sentenced to death and the court accepted the recommendation.

The death penalty remains a controversial issue worldwide. In March, Illinois Governor Pat Quinn [official website] signed Senate Bill 3539 [text] into law, which abolished the death penalty [JURIST report] in the state. The law is set to take effect on July 1. 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, the US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis, who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [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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Netherlands passes net neutrality law
Maureen Cosgrove on June 22, 2011 2:25 PM ET

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[JURIST] Dutch lawmakers on Wednesday passed a network neutrality [JURIST news archive] law, which prohibits mobile operators from blocking or charging consumers fees for using Internet-based communication services. The law, passed by the Dutch Parliament's lower house, the Tweede Kamer [official website, in Dutch], will prevent operators including KPN, Vodafone and T-Mobile [corporate websites] from imposing extra fees for free services like Skype. The Netherlands is the second country to enact a network neutrality law [NYT report]. Consumer advocates praised the legislation, comparing network neutrality to freedom of speech and press, and indicating that the law sets a positive precedent for other nations. Opponents of the law argue that the restrictions will deter investment and innovation, and possibly lead to higher prices for basic Internet service. Patrick Nickolson, a spokesman for KPN, expressed concern that the Dutch Parliament, which adopted the law after just two months of deliberation, did not spend more time discussing the implications of the new law.

Chile became the first country to implement network neutrality laws when the Chilean Parliament passed the laws in July 2010. In April, the US House of Representatives voted to overturn regulations [JURIST report] aimed at preserving the Internet as a free and open platform of communication after the Federal Communications Commission (FCC) [official website] approved the regulations last year [JURIST report], which prevent Internet providers from selectively blocking web access. Just days before, the US Court of Appeals for the District of Columbia Circuit [official website] granted a motion by the FCC to dismiss [JURIST report] a challenge to the new net neutrality rules. The court dismissed the appeal for improper timing because the challenged rulemaking document has yet to be published in the Federal Register [official website]. The challenges were filed by Verizon and MetroPCS [JURIST reports] in January out of concern over the broad authority the regulations would grant to the FCC. A previous court ruling found that the FCC lacks the power to enforce net neutrality [JURIST report]. Net neutrality is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information.




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ICC prosecutor to seek investigation into Ivory Coast
Julia Zebley on June 22, 2011 1:57 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Wednesday that he will seek an investigation [statement] into the Ivory Coast [BBC backgrounder; JURIST news archive] on Thursday. Last week, Ocampo issued a public notice [text] for victims of violence in the Ivory Coast to give statements and advise if the ICC should proceed with a formal investigation, although in May he said he had submitted a request [JURIST reports]. Last month, President Alassane Ouattara [BBC profile] asked the ICC to launch an investigation [JURIST report] into alleged crimes committed as a result of the disputed presidential elections last November. Violence has been ongoing since last year's disputed election, with factions of Ouattara and ousted former president Laurent Gbagbo [BBC profile] still engaging in retaliatory killings [JURIST report].

The Ivory Coast announced it would establish a commission [JURIST report] earlier this month, to investigate alleged crimes committed as a result of the disputed presidential elections last November. Thsi investigation may take up to two years [Reuters Africa]. An official for the International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo earlier this month. In April, Human Rights Watch urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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South Carolina lawmakers approve Arizona-style immigration legislation
Maureen Cosgrove on June 22, 2011 12:34 PM ET

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[JURIST] The South Carolina House of Representatives [official website] voted [voting history] 69-43 on Tuesday to enact legislation aimed at reforming the state's immigration laws. The immigration reform bill [SB 20 text] allows police officers to check a suspect's immigration status during a lawful stop, seizure, detention, or arrest, and mandates businesses to participate in the E-Verify [official website] system, which confirms a person's employment eligibility. The American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC) [advocacy websites], along with other civil rights groups announced they will file a lawsuit [press release] challenging the South Carolina immigration reform legislation. Immigrant advocacy groups, like the Southern Poverty Law Center Immigrant Justice Project [advocacy website] argue that the South Carolina laws and other similar laws invite racial profiling and infringe on human rights:
It is extremely disappointing to see the South Carolina state legislature following in these ill-fated footsteps by passing this legislation that will sacrifice citizens’ safety, cost the state an untold amount in taxpayer dollars and perpetuate bigotry. If Gov. Haley signs this legislation, SPLC will join our counterparts in fighting this unconstitutional and racist law to protect the civil rights of every South Carolinian.
The legislation will now proceed to South Carolina Governor Nikki Haley [official website] for signing.

Several other state legislatures have acted recently to implement so-called "Arizona style" immigration laws. The North Carolina House of Representatives [official website] voted [JURIST report] in June to pass a bill [HB 36 text, PDF; materials] requiring all employers with 25 or more employees to check the immigration status of their hires using the E-Verify system. In April, the Indiana House of Representatives [official website] voted [JURIST report] 64-32 to approve a bill [Amended SB 590 text; materials] considered to be a "watered-down" version of the Arizona immigration bill [JURIST news archive]. Alabama, Virginia, Oklahoma and Utah [JURIST reports] have all approved Arizona-style immigration bills within the past year. In May, the US Supreme Court [official website] upheld [JURIST report] an Arizona law requiring employers to utilize the E-Verify system, finding that it was not preempted by the Immigration Reform and Control Act [text] and thus not a violation of the Supremacy Clause [text]. This decision could have an impact on lawsuits challenging legislation in other states.




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Ukraine ex-PM Tymoshenko files complaint with Europe rights court
Julia Zebley on June 22, 2011 12:12 PM ET

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[JURIST] Ukrainian opposition leader and former prime minister Yulia Tymoshenko [personal website; JURIST news archive] filed a complaint [press release] with the European Court of Human Rights (ECHR) [official website] on Tuesday, alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argues that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival. In presenting the complaint, her lawyer, Sergey Vlasenko, said:
We ask to recognise that in the process of opening a criminal case against Ms Tymoshenko, during the investigation of criminal charges there has been a violation of sub-paragraph C of paragraph 1 of Article 5 of the European Convention on Human Rights, which suggests that a person can be detained only given sufficient evidence and given that a suspicion that a person committed a crime is well grounded. ... I would like to remind you that on 24 May the Prosecutor General's Office detained Tymoshenko, respectively, it detained her without sufficient reason because the case against her was opened on fanciful charges. It is precisely this that we would like the European Court of Human Rights to rule on.
Vlasenko also asked the the ECHR look at rules 39, 40 and 41 of the Rules of the European Court [text, PDF], which involve procedural errors he believes the Ukrainian Prosecutor General's Office (PGO) [official website, in Ukrainian] has made. Last month, EU official Catherine Asthon [official profile] expressed concern [RIA Novosti report] that the latest charges against Tymoshenko were politically motivated.

In May, the PGO charged Tymoshenko [JURIST report] under Article 365 of the Criminal Code of Ukraine [text] with abuse of office [press release, in Ukrainian] in connection with signing gas import contracts with Russia. In Feburary, the PGO combined two separate criminal cases [JURIST report] against her and concluded the pre-trial investigation. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports] while in office by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up. Tymoshenko said the vans were successful in providing medical services to rural villages. The current combined case against her is not the first time she has been prosecuted. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Federal appeals court upholds dismissal of Rumsfeld torture suit
Zach Zagger on June 22, 2011 11:16 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] Tuesday upheld the dismissal [opinion, PDF] of a torture suit against former US Secretary of Defense Donald Rumsfeld [ABC news backgrounder; JURIST news archive] brought by four Afghan and five Iraqi citizens alleging they were illegally detained and tortured. The plaintiffs sued in 2005 [JURIST report] claiming Rumsfeld and three other high-ranking military officers were directly responsible for violations of the Fifth and Eighth Amendments [text] and the Alien Torture Statute (ATS) [28 USC § 1350] for authorizing their illegal detention and torture by US authorities at Bagram Air Force Base and Abu Ghraib. They alleged that Rumsfeld and the officers formed the policies and practices that led to the unlawful conduct and when they had reason to know it was happening failed to take action to stop it. The US District Court for the District of Columbia [official website] dismissed the lawsuit [JURIST report] in March 2007 holding that government officials had immunity from liability for such conduct overseas. The DC Circuit ruled 2-1 that Rumsfeld and the military officers had qualified immunity from the Bivens claims for Fifth and Eighth Amendment violations since the plaintiffs did not allege any violations of clearly established law. The plaintiffs argued that the Supreme Court case in Boumediene v. Bush [Cornell LII backgrounder; JURIST report] established rights for detainees that were violated. But the court said that this was not established law at the time and even if the plaintiffs could claim constitutional violations the court "would decline to sanction a Bivens cause of action because special factors counsel against doing so." Further, the court dismissed the plaintiffs' ATS claims because they alleged only violations of the law of nations and not a violation of US law to satisfy the Westfall Exception [28 USC § 2679(b)(2)(B)] to civil liability for federal employees. The court said that the ATS is only a jurisdictional statute and thus, does not create a cause of action in of itself. Since the court found no cognizable claim it refused to grant the plaintiffs' request for declaratory relief that Rumsfeld and the officers violated the Constitution, military rules and guidelines, and the law of nations.

Judge Harry Edwards dissented over the dismissal of the plaintiffs' ATS claims. He said, "[i]t is ironic that, under the majority's approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350." Rumsfeld has been the target of a number of lawsuits over alleged unlawful detention and torture of suspected terrorists and US enemies. Earlier this month, the Center for Constitutional Rights (CCR) [advocacy website] appealed a case over two Guantanamo Bay [JURIST news archive] detainees, Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, who committed suicide while in detention in 2006, claiming the US and 24 government officials including Rumsfeld, are responsible for their arbitrary detention, torture, and deaths. Also this month, US citizen and convicted terrorist Jose Padilla [JURIST news archive], represented by the American Civil Liberties Union (ACLU) [official website], appealed [JURIST report] a lawsuit against government officials, including Rumsfeld, over his detention in a military prison arguing that he has a valid Bivens action. Rumsfeld has also faced possible criminal charges in Europe, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report].




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UN criticizes Sudan for human rights abuses
Julia Zebley on June 22, 2011 11:11 AM ET

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[JURIST] A UN official on Tuesday denounced continued human rights abuses [statement] against civilians in the South Kordofan region of the Sudan [BBC backgrounder]. The UN Under-Secretary-General for Humanitarian Affairs [official website] and Emergency Relief Coordinator Valerie Amos [official profile] said that the UN knows of more than 70,000 people who have been displaced by the conflict, many of whom are subject to violence and targeting due to their ethnic heritage.
I am also concerned that the overall security situation in Sudan is deteriorating at an alarming rate, with severe humanitarian consequences. Civilians are increasingly bearing the brunt of the volatile and uncertain political climate. The conflict has also prevented sowing at the beginning of the agricultural season which will cause food shortages. We could be facing a worst case scenario, with millions of civilians in both North and South Sudan in need of protection and critical humanitarian assistance.
Last week, the UN reported that several peacekeepers had been held and tortured [UN News Centre report] in the region, and that those providing humanitarian relief are vulnerable. On Wednesday, US President Barack Obama released a statement praising Sudan [text] for its efforts toward building peace, but also echoing Amos' concerns: "The situation in Southern Kordofan is dire, with deeply disturbing reports of attacks based on ethnicity. The United States condemns all acts of violence, in particular the Sudanese Armed Forces aerial bombardment of civilians and harassment and intimidation of UN peacekeepers."

South Kordofan is a state in the center of Sudan, and has been a disputed territory between Sudan and South Sudan, due to its oil reserves. South Sudan is scheduled to become independent next month and its forces, the Sudan People's Liberation Army (SPLA), have held South Kordofan since the 2005 peace deal that stifled Sudan's civil war. Sudan's army, the Sudanese Armed Forces (SAF), took over Abyei, a district in the state in May, causing a rebuke and demand for withdrawal [JURIST reports] by the UN. The UN confirmed reports of bombing and shelling in and around Abyei by the SAF, as well as widespread looting and burning of houses. Aid workers estimate 40,000 people have fled the area [BBC report]. While the UN has said that attacks on its peacekeepers amount to war crimes under international law, both the UN and the US have called on the northern troops to withdraw from Abyei. From the northern capital of Khartoum President Omar al-Bashir [BBC profile; ICC case materials; JURIST news archive] has stated he will not withdraw troops from the region and insisted that the area belongs to the north. An International Criminal Court (ICC) [official website] case is open against al-Bashir and several nations [China; Malaysia; Djibouti; Kenya; Chad JURIST reports] have been urged to arrest him on sight.




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Australia introduces cybercrime legislation, seeks to join international treaty
Maureen Cosgrove on June 22, 2011 10:34 AM ET

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[JURIST] The Australian Government [official website] on Wednesday introduced legislation [press release] aimed at reinforcing current cybercrime laws and improving Australia's international cybercrime security. Australian Attorney General Robert McClelland and Minister for Home Affairs and Justice Brendan O'Connor [official websites] announced that the Cybercrime Legislation Amendment Bill of 2011 aims to provide Australian agencies with better access to international Internet information collections, facilitate cybercrime investigations and align current cybercrime offenses with those punishable by an international cybercrime treaty. If the laws are approved by parliament, the country will be poised to make its accession to the Council of Europe (COE) Convention on Cybercrime [text], the international treaty on cybercrime. McClelland emphasized the importance of the legislation as it relates to the international treaty, as well as maintaining a safe domestic environment for Internet use:
While Australian law substantially complies with the obligations in the Convention, the Government believes there is more we can do to ensure Australia is in the best position to tackle cyber threats that confront us, both domestically and internationally. The increasing cyber threat means that no nation alone can effectively overcome this problem and international cooperation is essential. Australia must have appropriate arrangements domestically and internationally to be in the best possible position to fight cybercrime and cyber security threats.
More than 40 nations have signed or become a party to the Convention.

Several countries have attempted to bolster cymbercrime security enforcement in recent years. In early June, US authorities announced that they are investigating claims by Google [JURIST report] that hundreds of personal Gmail accounts were breached by hackers in China. In November 2009, the Iranian government announced the establishment of a new police unit [JURIST report] to fight Internet crime, though opposition leaders said its true purpose was to crack down on protesters and voices of dissent, who rely on the Internet to get their message out. The Finnish legislature passed the Exercise of Freedom of Expression in Mass Media Act [unofficial translation, PDF] in December 2008 that now provides a remedy to victims of Internet crime [JURIST report], but it was not in effect at the time of an incident of Internet pedophilia. The US Senate ratified [JURIST report] the COE Convention on Cybercrime, which is intended to improve information- and evidence-sharing between national governments to prevent crimes on the Internet, in August 2006.




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Nephew of Tunisia ex-president Ben Ali sentenced to 15 years in absentia
Zach Zagger on June 22, 2011 9:45 AM ET

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[JURIST] A Tunisian court Wednesday sentenced in absentia nephew of ousted former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] to 15 years in prison for issuing bad checks, according to a Tunisian state media report. A trial court in the city of Beja issued the cumulative sentence [TAP report] against Sofiane Ben Ali for multiple cases in which he wrote bad checks totaling more than USD $430,000. Tunisia has been cracking down on the family of Ben Ali since the ousted president fled the country in January amidst protests ending his 23-year autocratic rule in which his family amassed substantial wealth that many Tunisians say was at their expense. On Saturday, a Tunisian court convicted the nephew of Ben Ali's wife [Reuters report], businessman Imed Trabelsi, and sentenced him to two years in jail for drug use. He had admitted to using drugs before but said he had not used since 2000. He was arrested after Ben Ali fled the country to Saudi Arabia in January.

On Monday of this week, Ben Ali and his wife were convicted in absentia and sentenced to 35 years in prison on charges of theft and unlawful possession of money and jewelry after only an hours-long trial that began that morning [JURIST reports]. The two were also charged with illegal possession of drugs and weapons, but the verdict for those charges would not be announced until June 30. Ben Ali said he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report] more of which stem from allegations he authorized the use of force against protesters during the protests, resulting in more than 200 deaths.




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Bahrain military court sentences 21 activists
Julia Zebley on June 22, 2011 9:22 AM ET

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[JURIST] Bahrain's Lower National Safety Court sentenced 21 activists [BNA report] on Wednesday—eight to life in prison—for anti-government protests conducted earlier this year. The convicted were charged [charges, PDF] with "plotting to topple the leadership of the Kingdom of Bahrain," but rights organizations have denied this, stating that all convicted were protesters exercising freedom of speech. The 21 protesters [profiles, PDF] are primarily prominent members of opposition and human rights organizations including the Movement of Liberties and Democracy, the Al-Wafa Islamic Movement, Bahraini National Committee for Martyrs and Victims of Torture, Bahrain Freedom Movement, the Bahrain Center for Human Rights and a blogger for Bahrainonline [advocacy websites]. Several clerics were also convicted. It is reported that five defendants were convicted in absentia [BYSHR report]. The convicted have 15 days to appeal.

The National Safety Courts, special military tribunals, were instituted in mid-March under King Hamad bin Isa al-Khalifa's [official profile] three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW) [advocacy website]. The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men, who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations. In an effort to quiet protests that have been ongoing since March, last week, the Justice Ministry declared they would take action to lift the ban [JURIST report] on the leading opposition party, the National Democratic Action Society [website]. The leftist opposition party, known as Waad and aligned with the largest Shi'ite opposition group, was shut down in April during the pro-democracy protests [JURIST report].




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Federal appeals court allows 9/11 suit against New York, New Jersey port authority
Maureen Cosgrove on June 22, 2011 9:12 AM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Tuesday permitted [order, PDF] a lawsuit against the Port Authority of New York and New Jersey (PANYNJ) [official website] arising out of the terror attacks of September 11, 2001 [JURIST news archive] to proceed. An electrical substation at the base of 7 World Trade Center (7WTC) was destroyed when the building collapsed during the aftermath of the 9/11 terror attack. The substation was operated by Con Edison [corporate website], a company that leased property from the Port Authority. Con Edison brought the action against PANYNJ for negligence in construction and design and breach of contract in 2002, arguing that the diesel fuel tanks PANYNJ had improperly allowed its tenants to use accelerated the building's collapse [Reuters report]. The US District Court for the Southern District of New York [official website] granted summary judgment to PANYNJ, and Con Edison appealed. The appeals court reversed the lower court decision, indicating Con Edison's negligence claim was proper because it arose out of the Port Authority's "independent duty, as owner of the leased premises, to exercise reasonable care to avoid damage to persons or property thereon." The appeals court did, however, agree with the lower court's ruling that the lease agreement between the two companies provided only for no-fault reimbursement related to damage caused by active construction or maintenance of the building. The appeals court remanded the negligence claim for further consistent proceedings.

PANYNJ is also battling a lawsuit related to a separate terror attack. In June, PANYNJ argued in an appeal [case summary, PDF; JURIST report] before the New York Court of Appeals [official website] that they were not liable for negligence in the 1993 WTC attacks [FBI backgrounger; BBC backgrounder]. The Port Authority seeks to overturn the 2008 decision [text] that upheld a 2005 jury verdict [JURIST report] apportioning 68 percent of the fault to the Port Authority and 32 percent to the terrorists who committed the attack. The 1993 bombing of the WTC by Islamic radicals killed six and injured 1,000 through a car bomb placed in the basement parking garage. Five men were captured and sentenced to life in prison for the attack. After the bombing, 648 plaintiffs filed 174 negligence actions against the Port Authority for "alleged breach of its proprietary duty to maintain its premises in a reasonably safe condition." Negligence was assessed against the Port Authority after documents revealed that the WTC garage had been ignoring safety fears since 1984. The Port Authority police superintendent, at the time, stated the parking areas "[we]re accessible to the public and are highly susceptible to car bombings."




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JPMorgan reaches $153.6 million settlement with SEC
Sarah Posner on June 22, 2011 8:14 AM ET

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[JURIST] JPMorgan Chase & Co [corporate website] reached a $153.6 million settlement [text, PDF; press release] Tuesday for fraud charges brought by the US Securities and Exchange Commissionn(SEC) [official website] for allegedly misleading investors during the housing crisis. A settlement was reached when JPMorgan agreed to pay [Reuters report] a $133 million fine, in addition to $20.6 million for fraudulent profits and interest. This settlement is one of the most significant lawsuits against Wall Street for its role in the mortgage crisis. The press release stated:
The SEC alleges that J.P. Morgan structured and marketed a synthetic collateralized debt obligation (CDO) without informing investors that a hedge fund helped select the assets in the CDO portfolio and had a short position in more than half of those assets. As a result, the hedge fund was poised to benefit if the CDO assets it was selecting for the portfolio defaulted.
At this time, no individual bankers are being charged in the JPMorgan case.

In July 2010, Goldman Sachs [corporate website; JURIST news archive] agreed to a $550 million settlement [text, PDF] with the SEC to resolve charges [JURIST report] that they marketed a subprime mortgage product and made misleading statements and omissions to investors in early 2007. Of the $550 million settlement, $300 million will be paid to the US Treasury and $250 million will be distributed to harmed investors. The penalty was the largest against a financial company in SEC history. In May 2010, Lehman Brothers Holdings [corporate website] filed suit [complaint, PDF; JURIST report] against JPMorgan for allegedly "siphoning" off billions of dollars in "critically-needed" assets days before the investment bank filed for a record-breaking bankruptcy.




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Federal judge approves settlement in 15-year American Indian trust suit
Sarah Posner on June 22, 2011 7:19 AM ET

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[JURIST] Judge Thomas Hogan of the US District Court for the District of Columbia [official website] Monday approved [DOI press release] a $3.4 billion settlement [agreement, PDF] in the American Indian trust [news archive] class-action lawsuit. The suit has been underway for 15 years, with a federal judge approving of the most expensive class-action settlement against the US government [AP report] ever approved. The Department of the Interior (DOI) and the Department of Justice (DOJ) [official websites] applauded the settlement reached between American Indians and the US government. Interior Secretary Ken Salazar [official profile] stated that "Judge Hogan's decision is another milestone in empowerment and reconciliation for the American Indians." Plaintiff Elouise Cobell delivered a statement for the hearing through the phone, from her home in Montana. Cobell stated [statement]:
The terms of settlement bring a measure of justice to some of the most vulnerable people in this country. The settlement isn't perfect. I do not think it compensates all for all the losses sustained, but I do think it is fair and it is reasonable. That is what matters—a fair resolution has been achieved. I am convinced that it is the best settlement possible. I am convinced also that if this settlement failed, there would be many more years of litigation with little possibility of a more favorable resolution.
President Barack Obama [official website] expressed hope [statement] that this settlement will improve the relationship between the US government and American Indians and promised to "engage in government-to-government consultations" with the tribes over the land consolidation part of the settlement.

In October 2010, Hogan extended the deadline [JURIST report] for Congress to approve the $3.4 billion settlement concerning the US government's alleged mismanagement of funds [DOI materials] held in trust for American Indian landowners. Hogan set a new deadline for January 7, 2011, reasoning that this would allow the lame-duck session of Congress a final chance to approve the settlement. This is the seventh time an extension has been granted since the settlement was agreed upon [JURIST report] in December 2009. The House of Representatives has twice approved the settlement, but the US Senate, which will reconvene on November 15, has yet to vote on the issue. Hogan urged Congress to accept the settlement and meet the January extension, warning that costly litigation for both parties would follow further delay. The plaintiffs had rejected [JURIST report] a $7 billion settlement offer in 2007.




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Syria president al-Assad grants amnesty for crimes committed during protests
Zach Zagger on June 21, 2011 3:46 PM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile] Tuesday granted amnesty for "crimes" committed before June 20 during the protests that began earlier this year, according to a decree [text] published in Syrian state media. Minister of Justice Judge Tayseer Qala Awwad said the decree pardons those serving sentences who are suffering with terminal illnesses except for serious crimes such as smuggling arms and narcotics. However, Awwad said that some of the most serious felonies against individuals and society were not covered in the pardon. Also, the amnesty does not apply to cases where there is a private prosecution or personal claim against individual. This is the second amnesty decree al-Assad has issued in the past three weeks in attempt to defuse the now 13-week uprising pushing for al-Assad to either institute reforms or step down. On Tuesday, tens of thousands took part in pro-government rallies [Daily Mail report] in Syrian cities, but critics claimed that the rallies were composed of government service workers forced to attend wearing civilian clothing.

On Monday, al-Assad made a much-hyped speech [JURIST report] at Damascus University where he announced that he would soon introduce reforms and present a new constitution, but he spent much of the speech claiming that the protests were part of a conspiracy against Syria. He contends that a group of terrorists is responsible for the vandalism, robberies and murders that have taken place since protests erupted in the country early this year, and said that he planned to prosecute and hold those individuals accountable. Earlier this month, al-Assad granted amnesty to political prisoners [JURIST report] including all members of the previously banned Muslim Brotherhood (MB) [party website; JURIST news archive]. But opposition leaders dismissed the move and met in Turkey to discuss Syria's future. Syria has come under international scrutiny for using force to suppress the protests across the country. Earlier this month, the UN expressed concern over violence in Syria and urged the Syrian government to stop using force against protesters. Also, Syrian and international human rights groups urged [JURIST report] the International Criminal Court (ICC) [official website] to investigate the hundreds of civilian deaths during protests against al-Assad.Nearly 1,200 people have been killed and 10,000 displaced since protests erupted in February.




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Chile court orders temporary suspension of hydroelectric dam project
Maureen Cosgrove on June 21, 2011 2:05 PM ET

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[JURIST] A Chilean appeals court on Monday ordered [judgment, DOC, in Spanish] the temporary suspension of a USD $10 billion hydroelectric dam project in Patagonia. HidroAysen [project website, in Spanish], a private Chilean venture, seeks to build five dams whose construction was approved [Santiago Times report] by the Chilean government in May. The Puerto Montt court approved three petitions challenging government authorization of the dam construction and granted the plaintiffs' petition for injunction. The plaintiffs allege that the project's approval process was rife with conflicts of interest and tainted by Interior Minister Rodrigo Hinzpete, who intervened in the approval deliberation process. Authorities also allegedly overlooked negative reports about the project by various government agencies. Senate President Guido Girardi, opponent of the dam project, said the approval process was arbitrary and guided by corporate entities [La Tercera report, in Spanish], and that the project was not in the country's interest.

In addition to the construction of five dams on two rivers, the project calls for the flooding [AFP report] of 15,000 acres of wilderness in order to generate energy for Chilean cities. Recent polls indicate that over 74 percent of the Chilean population are opposed to the dam project. Plebiscites, or citizen petition initiatives, are being conducted in several small towns to change local land-use ordinances in an effort combat further approval of the dam project. Chileans took to the streets and protested the project [BBC report] in May arguing that "the dams will have dramatically negative effects on an important wilderness."




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Obama administration lawyers divided over legality of US operations in Libya
Zach Zagger on June 21, 2011 1:38 PM ET

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[JURIST] US President Barack Obama overrode the legal interpretations of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites] in maintaining the administration's position that US forces operating in Libya did not violate the 1973 War Powers Resolution [50 USC § 1541 et seq.], the New York Times reported [NYT report] Monday. Pentagon general counsel Jeh Johnson and Caroline Krass [official profiles] acting head of the Office of Legal Counsel told the President that they believed that US activities in Libya constituted "hostilities" under the War Powers Resolution. Under such an interpretation, US forces would have to have been pulled out by May 20 without further authorization from Congress. The president however, relied on the interpretations of White House counsel Robert Bauer [professional profile] and State Department legal advisor Harold Koh [official profile] in determining that US activities did not amount to "hostilities" because they are only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. Usually, interpretations of the Office of Legal Counsel are the last word, but the president does have the authority to override them. After threats to defund the operations from Congress, a group of 37 conservative leaders, including former deputy assistant secretary of state Liz Cheney, former deputy secretary of defense Paul Wolfowitz, and former Bush administration advisor Karl Rove, sent an open letter [WSJ report, letter text] to House Republicans Monday urging them not to cut funding:
Such a decision would be an abdication of our responsibilities as an ally and as the leader of the Western alliance. It would result in the perpetuation in power of a ruthless dictator who has ordered terrorist attacks on the United States in the past, has pursued nuclear weapons and other weapons of mass destruction, and who can be expected to return to these activities should he survive. To cut off funding for current efforts would, in short, be profoundly contrary to American interests. ... The United States should be leading in this effort, not trailing behind our allies. We should be doing more to help the Libyan opposition, which deserves our support. We should not be allowing ourselves to be held hostage to UN Security Council resolutions and irresolute allies.
Last week, Speaker of the House John Boehner (R-OH) [official website] threatened [WSJ report] that the House would defund operations in Libya arguing that it is outside the president's authority. Still, Obama's action found support [AP report] from outgoing Defense Secretary Robert Gates [official profile] who called US activities "a limited kinetic operation."

Last week, President Obama released a report defending the legality of US operations [JURIST report] in Libya in a report released in response to recent criticisms of American intervention in Libya, including: a resolution [bill materials] passed in the US House of Representatives [official website] calling for withdrawal without congressional approval; a letter [text] to Obama from Boehner warning that he was within five days of violating the War Powers Resolution; and Representatives Dennis Kucinich (D-OH) and Walter Jones (R-NC) [official websites] filing a lawsuit [JURIST report] seeking an injunction on the Libya action. Obama's report endorsed a pending resolution [bill materials] that would provide some congressional support for continued efforts in Libya, though not approval of declaring war. The report also detailed that the US has spent USD $716 million and will spend $1.1 billion by the end of September.




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Croatia ex-PM drops extradition appeal, faces corruption charges
Maureen Cosgrove on June 21, 2011 1:29 PM ET

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[JURIST] Former Croatian prime minister Ivo Sanader on Monday dropped his appeal of a Zagreb extradition request, thereby compelling him to face corruption charges in Croatia. Sanader's lawyers said that the former prime minister dropped the appeal after media speculation suggesting the appeal process could tarnish Croatian accession [DW report] to the European Union (EU) [official website]. Sanader is currently being held in Austria. The Salzburg Provincial Court ruled [JURIST report] in May that Sanader's extradition of could proceed. Sanader was arrested by Austrian officials [JURIST report] in December on charges of abuse of power, corruption and fraud for taking nearly €4 million from public firms and state institutions [Croatian Times report]. Counsel for Sanader announced that they would immediately appeal [DW report] the ruling to the High Provincial Court in Linz and argued that it would be impossible for Sanader to receive a fair trial in Croatia. Croatian President Ivo Josipovic [official website] said that Sanader would be entitled to a fair trial.

Croatian officials have been under serious pressure to the tackle the issue of corruption in order to gain accession [EU materials] to the EU by 2012. On the same day Sanader was arrested, former interior ministry official Tomislav Mercep was arrested [JURIST report] on charges of committing war crimes. Amnesty International (AI) [advocacy website] released a report [text, PDF; press release] calling for the prosecution of individuals responsible for war crimes the day before Mercep's arrest. In November, a Croatian court sentenced [JURIST report] six men to 15 to 40 years in prison for their roles in the killing of a Croatian journalist in 2008. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia [official website; JURIST news archive] investigating war crimes in the area. The entry talks were resumed in October of that year after the ICTY declared that Croatia was fully cooperating [JURIST report].




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Wisconsin judge upholds domestic partnership registry
Maureen Cosgrove on June 21, 2011 9:20 AM ET

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[JURIST] A Wisconsin judge ruled [opinion, PDF] on Monday that the state's domestic partnership registry does not infringe on the constitutional ban on gay marriage. Plaintiff Wisconsin Family Action [advocacy website] challenged the Domestic Partnership Registry [Wisc. Stats. 770 text, PDF] as unconstitutional pursuant to the Marriage Amendment of Wisconsin's Constitution [text, PDF]. Dane County Circuit Judge Daniel Moeser granted summary judgment to defendant Fair Wisconsin [advocacy website], finding that the defendant had made a prima facie case. Moeser indicated that, based on plain language, constitutional debates, and earliest interpretations by the legislature, the domestic partnership [JURIST news archive] legal status is not "substantially similar" to marriage such that the Marriage Amendment preempts the same-sex domestic partnership designation:
[T]he sum total of domestic partners' legal rights, duties, and liabilities is not identical or so essentially alike that it is virtually identical to the sum total of spouses' legal rights, duties, and liabilities. The state does not recognize domestic partnership in a way that mirrors how the state recognizes marriage. Moreover, the state confers drastically different benefits, rights, and responsibilities to domestic partners solely by virtue of their domestic partnership status in comparison to the benefits, rights, and responsibilities given to spouses because of their marriage status.
Though the registry does not bestow equal rights to individuals in civil partnerships and marriages, it grants same-sex couples legal rights including hospital visitation, end of life decision, and property inheritance rights. Republican Governor Scott Walker and Attorney General JB Van Hollen (R) [official websites] have refused to defend the registry.

Several states have addressed same-sex domestic partnership and civil union laws in recent years. Hawaii Governor Neil Abercrombie (D) [official profile] signed [JURIST report] a same-sex civil unions bill [SB 232 text, PDF] into law in February, legalizing same-sex civil unions in the state. That same month, Illinois Governor Pat Quinn (D) [official website] signed a bill [JURIST report] legalizing same-sex civil unions. Washington voters narrowly approved [JURIST report] Referendum 71 (R-71) [text], expanding the state's domestic partnership law in November 2009. In December 2007, a federal judge blocked [JURIST report] an Oregon law [HB 2007 text] that would allow same-sex couples to enter into contractual domestic partnerships. In April 2007, the Washington State House of Representatives [official website] approved [JURIST report] a domestic partnership bill (SB 5336) [PDF text; bill summary] that grants same-sex couples hospital visitation rights, inheritance rights when there is no will, and the power to authorize medical procedures, such as organ donation and autopsies. Washington Gov. Chris Gregoire [official website] signed the legislation [press release; JURIST report] into law the following week. 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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Croatia arrests 3 war crimes suspects from Serbo-Croatian War
Zach Zagger on June 21, 2011 9:12 AM ET

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[JURIST] Three former Croatian police officers were arrested Monday in connection to alleged war crimes committed against ethnic Serb civilians during the Serbo-Croatian War [GlobalSecurity backgrounder] in 1991 and 1992. Most notable among the three is Djuro Brodarac, a former police chief in the town of Sisak southeast of the capital Zagreb, who was arrested [Adnkronos International report] along with two other police officials, Vladimir Milankovic and Drago Bosnjak. The Youth Initiative for Human Rights (YIHR) [advocacy website], a rights organization in the former Yugoslav states, said that as many as 600 Serb civilians in Sisak were killed [press release, in Croatian] during the war. YIHR urged the Croatia to further investigate possible war crimes and prosecute all those responsible.


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Croatia has been cracking down on suspected war criminals from the Serbo-Croation war. These latest arrests come less than a month after the European Commission (EC) [official website] officially recommended [JURIST report] Croatia [EC materials] for accession to the European Union (EU) [official website], announcing that Croatia will become the 28th member of the EU on July 1, 2013. The day before the announcement, Croatian authorities charged former military commander and senior interior minister Tomislav Mercep [official profile, in Croatian] for war crimes committed against Serbians during the 1990s conflict in the Balkans. The indictment goes on to charge that he ordered detentions, torture and executions of Serbian civilians. Mercep was arrested [JURIST report] in December, and Croatian officials were nearing a deadline to release him without a formal indictment.




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Tunisia ex-president Ben Ali sentenced in absentia to 35 years
Maureen Cosgrove on June 21, 2011 9:02 AM ET

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[JURIST] Former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] and his wife were sentenced Monday by a Tunisian court after being found guilty in absentia on charges of theft and unlawful possession of money and jewelry. The two were sentenced to 35 years in prison [Reuters report] and fined USD $65.6 million. The sentencing came just hours after the trial began [JURIST report]. The two were also charged with illegal possession of drugs and weapons, but the verdict for those charges would not be announced until June 30. Ben Ali fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule in which his family amassed substantial wealth [Reuters report] that many Tunisians say was at their expense. But Ben Ali said Monday that he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report] which stem mostly from allegations that he authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. Justice Minister Lazhar Karoui Chebbi [profile, in French] announced the issuance of an arrest warrant for Ben Ali in January, though the country has not received a response to its request to extradite [JURIST reports] the former leader from Saudi Arabia, where he remains in exile. The uprisings in Tunisia and ousting of Ben Ali were the beginning of similar uprisings across the Middle East also resulting in the ousting of former Egypt president Hosni Mubarak [Al Jazeera profile; JURIST news archive].

Chebbi announced that Ben Ali had been charged with 18 offenses in April. The announcement came a little over a month after Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports]. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. The leader of the lower house of parliament, Foued Mebezza, assumed power as interim president [JURIST report] and is expected to remain in power until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has indicated will be within the next several months.




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Rights groups reject ICE changes to immigration enforcement program
Zach Zagger on June 20, 2011 3:10 PM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] and a coalition of other rights groups Friday rejected [press release] the changes announced by US Immigration and Customs Enforcement (ICE) [official website] to the criticized Secure Communities Program [materials], a federal enforcement program that partners local law enforcement with federal immigration authorities. The groups claim Secure Communities undermines public safety, invites racial profiling and pulls non-citizens into what they call a "dangerous" system of detention and deportation. ICE announced changes [WSJ report] Friday to its program that requires local law enforcement to turn over fingerprints to federal immigration officials after booking arrested individuals to check for immigration violations. The changes include the creation of an Advisory Committee and Minor Traffic Offenses to provide recommendations on how to focus on those illegal immigrants who pose a legitimate threat to public safety. ICE also issued a memorandum [text, PDF] promoting prosecutorial discretion by looking at considerations such as the individual's length of time in the US, whether they are pursuing an education and their prior immigration history. The rights groups said they commend ICE for trying to make changes in response to an outcry against the program but called the changes merely "cosmetic."

Earlier this year, the Inter-American Commission on Human Rights (IACH) [official website] released a report [JURIST report] arguing that US immigration enforcement agencies are overly reliant on a flawed detention system. The IACH investigated six immigrant detention centers based throughout Arizona and Texas. The report expressed concern over increased use of detention by the US government, citing a doubling in detention of non-citizens by ICE. It criticized the US government for viewing detention as a necessity and not as an exception in its enforcement. Absent comprehensive reform at the federal level, illegal immigration continues to be a concern for local governments as well. There are currently federal court challenges over preemption of state immigration bills passed by Arizona and Georgia [JURIST reports]. Earlier this month, the Oklahoma Supreme Court [official website] upheld an immigration law [JURIST report] authorizing law enforcement to use concurrent authority with the federal government to control illegal immigration, preventing illegal immigrants from receiving drivers' licenses or state-issued ID cards, making illegal immigrants ineligible for state assistance, and requiring employers to check the immigration status of its employees. Last month, the US Supreme Court [official website; JURIST news archive] ruled in Chamber of Commerce v. Whiting [Cornell LII backgrounder] to uphold an Arizona immigration [JURIST report] law that imposes penalties on businesses that hire illegal immigrants.




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Supreme Court reverses Petition Clause retaliation claim ruling
Maureen Cosgrove on June 20, 2011 3:02 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Borough of Duryea v. Guarnieri [Cornell LII backgrounder; JURIST report] that state and local government employees may not 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. To show that an employer interfered with rights under the Speech Clause of the First Amendment, an employee must show that his speech related to a matter of public concern. The court held that this test also applies when the employee invokes the Petition Clause. Respondent Charles Guarnieri filed a union grievance after being terminated as chief of police for the borough of Duryea. An arbitrator found that the borough council committed procedural errors and ordered that Guarnieri be reinstated as chief of police. The council instituted several directives that Guarnieri complained lacked a "warm welcome feeling," a complaint that the court deemed "private." Justice Anthony Kennedy, writing for the majority, indicated that using one test for both the Speech and Petition Clauses of the First Amendment is appropriate:
Articulation of a separate test for the Petition Clause would aggravate potential harm to the government's interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and expense of compliance with the Constitution.
Because respondent Charles Guarnieri's petition was related to a matter of private concern, the Supreme Court reversed the US Court of Appeals for the Third Circuit ruling.

Justice Antonin Scalia disagreed with the majority with respect to the "public concern" requirement, stating that the doctrine "frustrates the principal purpose of the Petition Clause." Scalia also would have held that the Petition Clause does not apply to petitions directed to the government acting as the petitioner's employer.




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Supreme Court rejects class action lawsuit against Wal-Mart
Maureen Cosgrove on June 20, 2011 1:08 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Wal-Mart v. Dukes [Cornell LII backgrounder; JURIST report] that a group of women seeking to recover damages from Wal-Mart failed to meet the requirements for class certification. The case, a Title VII [text] gender discrimination class action lawsuit estimated to include more than 1.5 million women, was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April. The Supreme Court held that the class action did not satisfy Federal Rule of Civil Procedure 23(a)(2) [text], which requires a class to prove that class members have common "questions of law or fact." The court distinguished between an employee's claim that she was individually discriminated against and a claim that the company has a policy of discriminating against a class of individuals:
Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
The plaintiffs failed to provide "significant proof" that Wal-Mart's promotion program, though granting wide discretionary authority to store management, "operated under a general policy of discrimination." Wal-Mart also claimed that class certification was improper under Federal Rule of Civil Procedure 23(b)(2), which does not authorize certification of claims seeking monetary relief, because the class sought primarily monetary compensation in the form of back pay. The Supreme Court agreed and ultimately reversed the appeal court ruling.

Justice Ruth Bader Ginsburg, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, concurred in part and dissented in part. Ginsburg argued that the majority conflates the 23(a) commonality requirement with the 23(b)(3) "predominance" criteria, a much higher standard to satisfy. She wrote that the class does in fact satisfy 23(a)'s threshold requirements but fails to meet the 23(b)(2) certification category. The issue of whether the class satisfies 23(b)(3), Ginsburg said, is a matter that should be left to the lower court on remand.




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Supreme Court rejects states' global warming suit
Zach Zagger on June 20, 2011 1:06 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] ruled [opinion, PDF] Monday in American Electric Power Co. v. Connecticut [Cornell LII backgrounder; JURIST report] that the Environmental Protection Agency (EPA) [official website] and the Clean Air Act [text] displace claims made under the federal common law of nuisance regarding whether electric utilities contributed to global warming [JURIST news archive]. The court ruled that at least one plaintiff had standing by an equally divided court as Justice Sonia Sotomayor did not take part in the decision. On the merits, all eight justices agreed in rejecting the claims by eight states, New York City, and three private land trusts brought invoking the federal common law for public nuisance against four power companies and the Tennessee Valley Authority (TVA) [official website]. The plaintiffs sought to control greenhouse gas emissions by creating a annually declining cap on emissions. The court held that to challenge greenhouse gas emissions the plaintiffs may file petitions for rulemaking with the EPA to set emissions standards. Currently, the EPA is undergoing rulemaking on the issue and is set to issue new standards by May 2012. The court said:
It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.
In Massachusetts v. EPA [Duke Law case backgrounder; JURIST report] the court found that the EPA had the authority to regulate greenhouse gas emissions under the Clean Air Act and its failure to set applicable standards without reason was no in accordance with law.

The US Court of Appeals for the Second Circuit ruled in 2009 that states can sue power companies for emitting carbon dioxide, reversing a district court decision [JURIST reports] that found the plaintiffs' claim was a non-justiciable political question. The lawsuit was brought by eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin—as well as New York City and three land trusts, against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation [corporate websites] and the TVA]. The Obama administration sided with the power companies.




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Supreme Court rules indigent defendants do not have right to counsel in civil cases
Maureen Cosgrove on June 20, 2011 11:48 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Turner v. Rogers [Cornell LII backgrounder; JURIST report] that an indigent defendant does not have a constitutional right to counsel in civil contempt cases that might result in imprisonment. The court held, however, that this particular defendant's due process rights were violated because he received neither counsel nor access to alternative procedures at his contempt hearing, even though the Due Process Clause of the Fourteenth Amendment [text] does not necessarily confer the right to counsel in civil cases. The petitioner, Michael Turner, was found to be in civil contempt for failure to pay court-ordered child support payments and was sentenced to 12 months in prison. Turner appealed his sentence, arguing that the court should have provided him with counsel because there was a possibility he would face imprisonment. The respondents first argued that the case is moot because Turner had already finished his 12-month sentence prior to civil litigation. The court ruled, however, that the case is not moot because it falls within a special category of disputes that are "capable of repetition" while "evading review." The court noted that, in determining whether a defendant's due process rights are violated in similar civil contempt actions, a court must consider the defendant's ability to pay child support, whether the opposing party is the government or the custodial parent unrepresented by counsel, and whether there are substitute procedural safeguards in place. Justice Stephen Breyer, writing for the majority, emphasized the importance of a defendant's due process rights:
The "private interest that will be affected" argues strongly for the right to counsel that Turner advocates. That interest consists of an indigent defendant's loss of personal liberty through imprisonment. The interest in securing that freedom, the freedom "from bodily restraint," lies "at the core of the liberty protected by the Due Process Clause." And we have made clear that its threatened loss through legal proceedings demands "due process protection."
The majority vacated the lower court's ruling and remanded for further consistent proceedings.

Justice Clarence Thomas, joined by Justices John Roberts, Antonin Scalia and Samuel Alito, stressed that neither the Fourteenth nor Sixth Amendments [text] confer the right to counsel in civil cases. He also pointed out that the court should not have reached the issue of whether Turner's contempt hearing violated Due Process because that issue was never raised by either party prior to the filing of amicus briefs. Finally, Thomas noted that he would not engage in the majority's balancing test because state legislatures have made their own policy judgments regarding the enforcement of child support laws.




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Syria president promises reform, alleges conspiracy
Maureen Cosgrove on June 20, 2011 10:20 AM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile] on Monday announced that he would soon introduce reforms and present a new constitution [press release], alleging that a conspiracy against Syria is ongoing. In a speech before citizens at Damascus University, al-Assad said he wanted citizen input with respect to a new constitution in the form of a national referendum. Al-Assad spent much of his speech addressing an alleged conspiracy, contending that a group of terrorists was responsible for the vandalism, robberies and murders that have taken place since protests erupted in the country early this year, and that he planned to prosecute and hold those individuals accountable. He also said that foreign political entities pressure Syria and interfere with Syrian affairs for their own benefit, and he accused the media of inciting violence and getting involved in protests to get better footage. These forces, he said, were antagonistic to Syria's development. Al-Assad called on Syrian citizens to participate in the reform:
The people are the most capable of maintaining security. ... I say that based on experience and reality. ... The one who protected the country during the critical years and who are protecting it now are the people. ... They are the youths who confronted, initiated and implemented. ... [A] state's strength lies in the strength of the people and their strength lies in their dignity and their dignity lies in their freedom and their freedom lies in the power of their country.
"Equality, justice, transparency and honesty are the future headlines which we aspire for our country," al-Assad said.

There has been a major struggle to put an end to Syrian violence since the protests began earlier this year. In June, Syrian and international human rights groups urged [JURIST report] the International Criminal Court (ICC) [official website] to investigate the hundreds of civilian deaths during protests against al-Assad. The UN Human Rights Council (UNHRC) [official website], in an emergency special session in April, publicly condemned [text, PDF; JURIST report] the violence used by Syrian authorities against peaceful protesters. UN High Commissioner for Human Rights Navi Pillay [official profile] called for Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters. Also in April, al-Assad ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued. Earlier in the same month, Human Rights Watch (HRW) [advocacy website] reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. Pillay urged the Syrian government [JURIST report] in March 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 in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.




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Supreme Court to decide case over title to riverbeds, 3 others
Zach Zagger on June 20, 2011 9:40 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in four cases. In PPL Montana v. Montana [docket; cert. petition, PDF] the court will determine if the proper constitutional test for whether a river is navigable for title purposes requires a trial court to consider whether the river was considered navigable at the time the state joined the Union or whether the court can consider new evidence based on current use. The challenge is being brought by a company that owns a hydroelectric power dam on the Missouri River after the Supreme Court of Montana held [opinion, PDF] that the title to the riverbeds passed to Montana when it became a state in 1889 and that the riverbeds are public trust lands under Article X, Section 11. The Supreme Court of Montana ordered PPL to pay $41 million in back rent and more in future rent for use of the riverbeds. Last November, the court requested [JURIST report] the acting solicitor general to submit views on the case.

In First American Financial v. Edwards [docket; cert. petition, PDF] the court will decide whether a plaintiff has standing to sue, on behalf of a nationwide class, claiming a real estate company violated the Real Estate Settlement Procedures Act of 1974 [text] without claiming that the violation affected the services rendered. RESPA makes it illegal for settlement service companies to receive a kickback involving any federally related mortgage loan. The plaintiff argues that her title agent improperly referred her to First American Financial [corporate website] in violation of RESPA seeking to recover settlement service charges despite not showing that First American Financial was more expensive or provided inadequate service. The Ninth Circuit Court of Appeals held [opinion, PDF] that the payment of he service charges established an injury in fact sufficient to satisfy Article III standing because RESPA's text does not limit liability to cases where the plaintiff is overcharged.

In Mayo Collaborative Services v. Prometheus Laboratories, Inc. [docket; cert. petition, PDF] the court will here a case over the ability to patent under 35 USC § 101 [text] the observed correlations between natural metabolite reactions of the body to different dosages of a certain type of drug. Prometheus Labs [corporate website] patented the tests doctors use for determining the appropriate dosage of drugs for treating Crohn's disease and other autoimmune diseases. Mayo Collaborative argues that the tests look at "natural phenomenon" and that doctors violate the patents simply by mentally recognizing the correlation regardless of what the doctor does with this knowledge. The Supreme Court accepted a case on this issue before in Laboratory Corp. of America v. Metabolite Laboratories [Duke Law case backgrounder; JURIST report] but dismissed it as "improvidently granted" because the petitioner had not adequately preserved the question.

In Federal Aviation Administration v. Cooper [docket; cert. petition, PDF] the Supreme Court will decide whether a pilot who lost his license for a failure to disclose he had HIV can sue the federal government for mental and emotional damages. The pilot, Stanmore Cooper, did not tell the Federal Aviation Administration (FAA) that he had HIV but did disclose it to the Social Security Administration (SSA) [official websites] in order to receive disability benefits. This fact was discovered during a government investigation to streamline agencies. Coopers pilots' license was revoked after a determination that he would not have been medically certified to fly if it was known he had HIV. Cooper admitted to delivering a false writing and was sentenced to a fine and probation. Cooper is suing the government claiming that the sharing of documents between the two agencies during the investigation violated the Privacy Act of 1974 [5 USC § 552a] seeking "actual damages" for mental and emotional distress. But the government claims the Privacy Act's "actual damages" does not cover such distress. The US Court of Appeals for the Ninth Circuit held [opinion text] the SSA violated the Privacy Act and that the Cooper could sue for emotional distress damages. Justice Elena Kagan, former solicitor general for the US, recused herself from consideration of this case.




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Liechtenstein voters approve civil partnership law
Maureen Cosgrove on June 20, 2011 9:09 AM ET

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[JURIST] Liechtenstein citizens voted on Sunday in favor of a law that permits same-sex civil partnerships. The results of last week's referendum show that 68 percent of the voters supported [AFP report] the Civil Partnership Act. The Liechtensten Parliament [official website, in German] unanimously approved the law [Vaterland report, in German] on March 16, but opponents of the civil partnership law, Vox Populi [official website, in German], called for a national referendum. The new law will confer the same tax, inheritance and welfare rights that married couples in Liechtenstein receive, but excludes the right to adoption. The law is scheduled to go into effect on September 1, 2011.

Liechtenstein joins a growing contingent of countries and US States that recognize same-sex partnerships as either full marriage or civil unions and partnerships. The Supreme Federal Court of Brazil [official website, in Portuguese] unanimously recognized legal rights [press release, in Portugese; JURIST report] for partners in same-sex civil unions [JURIST news archive], though Hungary added a prohibition against gay marriage [JURIST report] to its Constitution one month earlier. Ireland, which legalized homosexuality in 1993, passed a civil partnership bill [JURIST report] in 2009 extending rights to same-sex couples. Although a Greek court invalidated in May 2009 the first same-sex marriages performed in country, the Swedish parliament passed a same-sex marriage law in April [JURIST reports]. In December 2008, Hungary struck down [JURIST report] a same-sex partnership law by alleging that it would diminish the importance of marriage. In November 2008, the Australian Senate approved [JURIST report] a same-sex equal rights law but did not grant the right to marry.




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Trial of Tunisia ex-president Ben Ali begins in absentia
Zach Zagger on June 20, 2011 8:49 AM ET

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[JURIST] The trial in absentia of former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] began Monday, over charges ranging from murder and conspiracy to trafficking and drug use. Ben Ali fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule in which his family amassed huge wealth [Reuters report] that many Tunisians say was at their expense. But Ben Ali said Monday that he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his attorney. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report] which stem mostly from allegations that he authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. Justice Minister Lazhar Karoui Chebbi [profile, in French] announced the issuance of an arrest warrant for Ben Ali in January, though the country has not received a response to its request to extradite [JURIST reports] the former leader from Saudi Arabia, where he remains in exile. The uprisings in Tunisia and ousting of Ben Ali were the beginning of similar uprisings across the Middle East also resulting in the ousting of former Egypt president Hosni Mubarak [Al Jazeera profile; JURIST news archive].

Chebbi announced that Ben Ali had been charged with 18 offenses in April. The announcement came a little over a month after Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports]. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. The leader of the lower house of parliament, Foued Mebezza, assumed power as interim president [JURIST report] and is expected to remain in power until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has indicated will be within the next several months.




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Bahrain government lifts ban on opposition party
Alexandra Malatesta on June 19, 2011 1:43 PM ET

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[JURIST] The Justice Ministry of Bahrain [BBC backgrounder] announced Saturday that the government will be take action to lift the ban on the leading opposition party, the National Democratic Action Society [website]. The leftist opposition party, known as Waad and aligned with the largest Shi'ite opposition group, was shut down in April during the pro-democracy protests [JURIST report]. Waad spokesman Radhi al-Mousawi said the party would reopen its headquarters in the capital, Manama, and later its office in Muharraq. Waad is considering engaging in the political dialogue in July with King Hamad bin Isa al-Khalifa [official profile] regarding the kingdom's state of crisis. Ibrahim Sharif, leader of the Waad party, remains in prison [Khaleej Times report] for allegedly plotting a coup with the support of a foreign terrorist group.

In April, al-Khalifa 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]. 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 was "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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Greece PM proposes constitutional referendum
Daniel Makosky on June 19, 2011 12:37 PM ET

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[JURIST] Greek Prime Minister George Papandreou [official website] on Sunday, while delivering opening remarks to a three-day session of the Greek Parliament [official website, in Greek], proposed undertaking a constitutional referendum. Papandreou suggested a fall referendum [AP report], arguing its necessity in order to eliminate the systemic governmental inefficiency and waste that led to the country's recent economic crisis [BBC backgrounder] and to prosecute corrupt officials. Opponents described the proposal as a politically-motivated tactic to shift the dialogue away from questions of Papandreou's competency. The prime minister also stated that Greece is in negotiations to secure a second bailout package of approximately the same value as the €110 billion loan it received last May to alleviate the crisis. The debate is expected to conclude Tuesday with a confidence vote on Papandreou's government.

Greece's recent economic crisis threatened to destabilize the international economy. In May 2010, the EU and International Monetary Fund (IMF) [official website] announced the initial €110 billion bailout package for Greece, which was subsequently approved by euro-zone leaders [BBC report]. The following day, Germany's Constitutional Court [official website, in German] refused to issue a temporary injunction [JURIST report] against the country's €22.4 billion contribution to the bailout fund. The suit, brought by the same group that had previously sought to block Germany's adoption of the euro, claimed that the contribution was unconstitutional.




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Former Tunisia president denies allegations before trial
Daniel Makosky on June 19, 2011 11:21 AM ET

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[JURIST] The lawyer representing former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] on Sunday denied the numerous charges facing his client, which range from murder and conspiracy to drug use. Ben Ali's trial in absentia before civilian and military courts is set to begin on Monday [VOA report]. If convicted, Ben Ali could face a long prison sentence. The charges stem mostly from allegations that Ben Ali authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. Justice Minister Lazhar Karoui Chebbi [profile, in French] announced the issuance of an arrest warrant for Ben Ali in January, though the country has not received a response to its request to extradite [JURIST reports] the former leader from Saudi Arabia, where he remains in exile.

The charges against Ben Ali came after advocacy groups Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports]. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. The leader of the lower house of parliament, Foued Mebezza, assumed power as interim president [JURIST report] and is expected to remain in power until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has indicated will be within the next several months.




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North Carolina passes bill requiring use of E-Verify
Michael Haggerson on June 18, 2011 4:00 PM ET

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[JURIST] The North Carolina House of Representatives [official website] on Saturday voted 67-45 to pass a bill [HB 36 text, PDF; materials] requiring all employers with 25 or more employees to check the immigration status of their hires using the E-Verify [official website] system. The bill would take full effect after a 24-month phase in period, after which around 40 percent of the state's businesses and all its cities and counties would be required to use the E-Verify system in all future hires. Detractors of the bill argue that it lacks strong enforcement provisions [News & Observer report] and will result in many false complaints. The bill was previously passed by the state Senate, and will now go to Governor Beverly Perdue [official website] for her veto or signature.

State laws requiring the use of the E-Verify system have recently been introduced throughout the country despite controversy over the concern that the system is not accurate enough to be made mandatory upon employers. In May, the US Supreme Court [official website] upheld [JURIST report] an Arizona law which required employers to utilize the E-Verify system, finding that it was not preempted by the Immigration Reform and Control Act [text] and thus not a violation of the Supremacy Clause [text].




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Missouri governor vetoes voter ID legislation
Michael Haggerson on June 18, 2011 2:00 PM ET

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[JURIST] Missouri Governor Jay Nixon [official website] vetoed legislation [SB 3 text, PDF; materials] on Friday that would have required individuals to present government-issued photo ID cards [JURIST news archive] at the voting booth. Proponents of the legislation argued [St. Louis Times report] that it is necessary to protect against election fraud. The bill also contained an extension on early voting, long sought-after by Missouri Democrats [AP report]. In a letter [text, PDF] explaining his decision, Nixon stated:
Disenfranchising certain classes of persons is not acceptable. [SB 3] imposes unnecessary burdens on senior citizens and persons with disabilities. Placing a cloud of uncertainty over ballots cast by qualified voters is inconsistent with an individual's right to vote and have that vote counted.
Lamenting the veto, State Senator Bill Stouffer, the bill's sponsor, stated [press release] that "[w]e have to have a picture ID to rent a movie or send something via UPS, but we don't need one to vote. With his veto today, it's a shame the governor doesn't understand the necessity of this bill to fight voter fraud." Detractors argue that it is unnecessary and the election fraud that the bill attempts to prevent has not been demonstrated to exist. Despite Nixon's veto, the photo ID requirement and extended early voting provisions are still being put before the voters on Missouri's 2012 ballot as constitutional amendments. The legislature can also override the veto by two-thirds majority vote in both houses of the legislature.

In 2006, the Supreme Court of Missouri [official website] struck down [JURIST report] a similar law [SB 1014, PDF], holding that requiring voters to present ID cards violates the equal protection and voting-rights clauses of the Missouri Constitution [text]. Applying strict scrutiny analysis, the court found that requiring Missourians to obtain IDs imposes more than a minimal burden on their voting rights, noting that it requires "time, funds and advance planning." The court also held that the provision was not narrowly tailored to the compelling state interest of preventing voter fraud.




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DOJ: Indiana ban on Medicaid funds to abortion providers violates federal law
Sarah Posner on June 18, 2011 12:00 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday urged the court to grant an injunction [brief, PDF] to stop the enforcement of an Indiana abortion law [HB 1210], which seeks to deny Medicaid funding to organizations that provide abortion services. The DOJ filed the brief in the US District Court for the Southern District of Indiana [official website] seeking to stop the Indiana law which prevents Medicaid funding from going to Planned Parenthood [advocacy website] for any reason due to their abortion services. In the brief, the DOJ argued that the law violated Medicaid's freedom of choice provisions by eliminating health care providers from coverage. Urging the court to grant the injunction, the DOJ stated:
Preliminary injunctive relief is warranted here not only because Indiana's law violates the Medicaid statute, but also because injunctive relief is in the public interest. Injunctive relief will prevent further injury to Indiana's Medicaid beneficiaries. And although Indiana claims that its law serves the public interest because it prevents "taxpayer dollars from indirectly funding abortion[,] advances the State's goal of encouraging women to choose childbirth instead of abortion ... and ensure[s] that women who choose abortion have all the information necessary to make an informed and voluntary decision," Congress, in the Medicaid statute, has already made a different policy judgment: to ensure that beneficiaries who wish to receive Medicaid services—particularly family planning services—may receive those services from providers of their own choosing.
US District Judge Tanya Walton Pratt has said she will rule on the issue before July 1 [AP report]. The judge gave Indiana a week to respond to the DOJ's brief.

The DOJ brief echoes arguments made earlier this month by the Obama administration, which argued against Indiana's law [JURIST report] in a letter to the state. Last month, a federal judge refused to block the law [JURIST report]. Several other states have acted recently to tighten restrictions on abortions. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] challenging a South Dakota law requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry signed a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Iowa, Kansas and Idaho [JURIST reports].




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Morocco king announces constitutional reforms
Sarah Posner on June 18, 2011 10:00 AM ET

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[JURIST] King Mohammed VI of Morocco on Friday announced changes to the constitution [speech text, video] which would transfer some of the political power held by the king to elected officials. The proposed changes would instill more authority in the country's prime minister, who would be given the power to appoint government officials as the "president of the government." The reforms would also ensure that the prime minister is the leader of the largest party in parliament, as opposed to being selected by the king. Mohammed said that if these reforms were approved, it would represent a transition to democratic institutions [BBC report] for Morocco. Mohammed would still retain certain important powers [Al Jazeera report] as chair of the Council of Ministers and the Supreme Security Council, leaving him control over the country's security, military and religious institutions. During his speech, Mohammed also emphasized the promotion of human rights in the reforms:
[T]he Moroccan Constitution will be a human rights Constitution as well as a charter for citizenship rights and obligations. In this regard, the draft Constitution provides for the pre-eminence of international covenants—as ratified by Morocco—over national legislation, as well as gender equality in civil rights, within the framework of respect for the Constitution, and for the Kingdom’s laws which are derived from Islam. The draft Constitution also provides for equality between men and women in all political, economic, social, cultural and environment-related rights. The draft Constitution confirms the commitment to all human rights, especially the presumption of innocence and guaranteeing the conditions for a fair trial. It criminalizes torture, enforced disappearance, arbitrary detention and all forms of discrimination and inhuman, degrading practices. The draft Constitution also upholds freedom of the press and of expression and opinion, as well as the right to access information and to submit petitions, in accordance with norms and criteria specified in an organic law.
Mohammed's announcement comes amid protests staring in February, which called for democratic reform in Morocco. The changes are set to appear on a referendum July 1. Shortly following the speech, protests were called [Al Jazeera report] against the new constitution, with organizers calling for a more democratic constitution.

The announced reform are a product of a reform process announced in April following peaceful demonstrations [JURIST reports] demanding democratic reforms as part of the wider protests in the Middle East and North Africa [BBC backgrounder; JURIST news archive]. Mohammed had previously made some concessions since the outbreak of protests including the release of political prisoners.




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Ontario court extends stay upholding anti-prostitution laws until court ruling
Zach Zagger on June 17, 2011 2:44 PM ET

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[JURIST] A five-judge panel for the Ontario Court of Appeal [official website] Friday extended stay of a lower court decision striking down laws banning prostitution-related activities, leaving the activities illegal pending ruling of the court. The panel extended the stay [Toronto Star report], which was already extended [JURIST report] last December, just before the proceedings in the Court of Appeal ended Friday, keeping it in effect until a ruling that is expected to come sometime in the next six months. Justice David Doherty said the stay will remain in effect until the court says otherwise before the judges retired to discuss their decision. Although prostitution is legal in Canada, virtually all of the acts ancillary to exchanging sex for money are not. Last September, the Ontario Superior Court of Justice (OSCJ) [official website] ruled [JURIST report] that provisions § 210, § 212 and § 213 of the Canadian Criminal Code [texts], which prohibit the keeping of a "common bawdy house," engaging in communications for the purpose of soliciting sex and living "on the avails" of the sex trade, were a violation of the Canadian Charter of Rights and Freedoms [text].

The legality of prostitution in Canada is in a state of flux pending legal challenges to the constitutionality of anti-prostitution laws. In March, the Supreme Court of Canada [official website] agreed to review a B.C. Court of Appeal [official website] decision allowing a challenge to the country's anti-prostitution laws. In arguing to extend the stay in this case last December, the government said a stay would be necessary until the court could conduct a full review of the decision, while the party challenging the laws argued that the stay would "perpetuate the law's contribution to violence against a vulnerable population." Justice Marc Rosenberg applied the RJR-MacDonald Inc. v. Canada test for granting a stay pending appeal, which requires the court to balance convenience and public interest considerations of the issue. He concluded that it is in the public interest that the judgment be stayed for a relatively short period to permit appellate review of the decision. In 2007, the Sex Professionals of Canada [advocacy website] initiated an application with the OSCJ [JURIST report] challenging the three provisions overturned in September's ruling on the grounds that they are inconsistent with the Charter. The challenge came on the heels of the trial of Robert Pickton [CBC case backgrounder], who was accused of murdering 26 women [indictment text], mostly prostitutes, in the Vancouver area in the 1990s. Pickton was convicted of six counts of murder [Globe and Mail report] in late 2007.




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Federal prosecutors drop charges against Osama Bin Laden
Julia Zebley on June 17, 2011 2:24 PM ET

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[JURIST] Federal prosecutors in the US District Court for the Southern District of New York [official website] dropped all charges [indictment text] against al Qaeda leader Osama Bin Laden [JURIST news archive] in a filing [text] made Friday. The judge approved the procedural move, which is typical upon the death of a defendant. The nolle prosequi motion listed the hundreds of charges against Bin Laden and explained the government's proof of his death.
Shortly after the Abbottabad Raid, US forces collected DNA samples from the body of the deceased individual assessed to be Bin Laden. Those DNA samples were then transported from Abbottabad, Pakistan to U.S. military facilities in Afghanistan, where they were immediately provided to DoD and CIA personnel for processing and comparison. CIA and DoD conducted DNA tests, during which the sample from the Abbottabad Raid was compared with a comprehensive DNA profile derived from DNA collected from multiple members of BIN LADEN's family. These tests confirmed that the sample from the Abbottabad Raid genetically matched the derived comprehensive DNA profile for Usama Bin Laden. The possibility of a mistaken identification is approximately one in 11.8 quadrillion.
Bin Laden was killed [JURIST report] in early May by American military forces in Pakistan. Bin Laden had topped the US list of Most Wanted Terrorists [FBI backgrounder] and is believed to have approved or helped plan many notorious terror attacks including those against New York and Washington DC on September 11, 2001, the 2000 bombing of the USS Cole [JURIST news archives], attacks on US embassies in Kenya and Tanzania [PBS backgrounder] in 1998 and the 1993 bombing of the World Trade Center.

As founder and leader of al Qaeda [JURIST news archive], Bin Laden represents the highest profile terror target captured or killed by the US. Last month, the US Department of Defense (DOD) [official website] announced that alleged former al Qaeda chief in the Arabian Peninsula and accused mastermind of the USS Cole bombing Abd al-Rahim al-Nashiri [JURIST news archive] will be tried in a military court [JURIST report] rather than in a civilian criminal court. Also last month, US Attorney General Eric Holder announced that Khalid Sheikh Mohammed [BBC report; JURIST news archive], a high-ranking al Qaeda member whom US officials say was principally responsible for planning the 9/11 attacks, will be tried by a military tribunal [JURIST report] as well. Mohammed has also admitted involvement in the 2002 beheading [JURIST report] of US journalist Daniel Pearl [JURIST news archive], the 2002 Bali nightclub bombing [BBC backgrounder; JURIST news archive] and the 1993 World Trade Center bombing. The detention and treatment of accused al Qaeda members held at Guantanamo Bay [JURIST news archive] has generated controversy in the US and throughout the world [JURIST reports].




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Illinois appeals court orders lower court to rule on abortion notification law
Maureen Cosgrove on June 17, 2011 1:11 PM ET

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[JURIST] The Illinois Appellate Court [official website] on Friday ordered [opinion, PDF] a circuit court to determine whether a law requiring a girl's guardians to be notified before she has an abortion should be enforced. The Parental Notice of Abortion Act of 1995 [text], which has never been enforced [AP report], mandates that doctors notify the guardians of girls younger than 18 years old 48 hours before the girl gets an abortion. Girls can request a court order from a judge to circumvent the notification requirement. The decision reverses a lower court ruling lifting the injunction on the enforcement of the law. The Thomas More Society [advocacy website], a supporter of the law, expressed discontent with the appeal court's decision:
We strongly disagree with the Illinois Appellate Court's decision to send this back to the trial court without deciding the legal issues involved. This decision is flawed in so many respects that further trial proceedings would be pointless. Only a prompt review by the Illinois Supreme Court can correct the injustice of this law languishing in legal limbo.
The American Civil Liberties Union (ACLU) [advocacy website], representing the plaintiffs, praised the appeal court decision. Lorie Chaiten, director of the ACLU of Illinois Reproductive Rights Projects said the law is harmful [press release] and that "young women who do not tell their parents about their pregnancy or desire to have an abortion, have good reasons, including fear for their personal safety."

An Illinois Cook County Circuit Court [official website] judge ruled [opinion, PDF; JURIST report] in May 2010 that the law is constitutional and lifted the temporary restraining order [JURIST report] on the law's enforcement. Judge Daniel Riley, however, approved a 60-day grace period, preventing state officials from enforcing the law pending appeal procedures. Riley granted the temporary restraining order [JURIST report] in November 2010, only hours after the Illinois Medical Disciplinary Board ruled to begin enforcing the law. The order was originally sought by the ACLU-IL in support of a suit brought by a local medical doctor and a women's clinic on behalf of themselves and their minor patients. ACLU-IL alleged that enforcement of the law would cause major harm and compromise the privacy of some Illinois teen-aged women. The Illinois Department of Finance and Professional Regulation (DFPR) [official website] granted doctors a 90-day grace period [JURIST report] for enforcement of the parental notification requirement, following a ruling [JURIST report] by the US Court of Appeals for the Seventh Circuit [official website] that reversed a district court injunction [JURIST report] barring the law's enforcement. The 1995 law, which has never been enforced, authorizes state judges to waive the notice requirement if doing so would be in a minor's best interest, but otherwise requires parental notification for minors seeking an abortion.




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International labor body passes new convention to protect rights of domestic workers
Zach Zagger on June 17, 2011 11:52 AM ET

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[JURIST] The International Labor Organization (ILO) [official website] adopted a new convention [text, PDF] at its annual conference in Geneva Thursday to protect domestic workers' labor rights. The 100 Session of the International Labor Conference [official website] came to a close Friday. The convention sets standards for domestic workers in line with basic labor rights as those for other workers, including reasonable work hours, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, including other basic rights such as freedom of association and collective bargaining. In the introductory text, the convention says it was passed:
[r]ecognizing the significant contribution of domestic workers to the global economy, which includes increasing paid job opportunities for women and men workers with family responsibilities, greater scope for caring for ageing populations, children and persons with a disability, and substantial income transfers within and between countries, and ... domestic work continues to be undervalued and invisible and is mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights, and... that in developing countries with historically scarce opportunities for formal employment, domestic workers constitute a significant proportion of the national workforce and remain among the most marginalized.
The convention must still be ratified by the countries joining it for it to be binding. It is unlikely that the US will ratify [ABC News report] the treaty since for the most part labor laws are controlled by the states. The US has only ratified two of the ILO's 189 conventions.

Last September, Human Rights Watch (HRW) [advocacy website] released a report saying Lebanon should improve its judicial system [JURIST report] by providing mechanisms to better protect the basic rights of domestic workers and more ardently prosecuting those who violate them. Earlier last year, the ILO reiterated its call on the international community to take a "rights based approach" [JURIST report] to international migration. The group said that 90 percent of the migration that occurs is driven by the search for employment and that countries should seek to provide "conditions of freedom, dignity, equity and security," to migrant workers. It said that under the right conditions migrant workers, could provide benefits to both their countries of employment and origin, but that they currently face low wages, discrimination, and a lack of social or legal protection. In 2008, HRW reported that migrant and domestic workers still face abusive and exploitative treatment [JURIST report] throughout Asia and the Middle East. The rights group observed that workers in many nations throughout the region lacked access to judicial systems, and often lacked appropriate redress even when granted access. Earlier that year, HRW urged Saudi Arabia [JURIST report] to institute new legal protections for the country's estimated 1.5 million domestic workers.




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China urged to arrest Sudan president for war crimes
Maureen Cosgrove on June 17, 2011 11:14 AM ET

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[JURIST] Amnesty International [advocacy website] urged China on Friday to withdraw an invitation for Sudanese President Omar al-Bashir [case materials; JURIST news archive] to participate in an event there and to arrest him if he travels to the country [press release]. Al-Bashir is scheduled to meet Chinese President Hu Jintao [BBC profile] and other government officials in China at the end of June. China is not currently a party to the ICC's Rome Statute [text, PDF] and therefore has no obligation to the international community to arrest al-Bashir. China is, however, a permanent member of the UN Security Council [official website], which formally referred the Darfur case to Luis Moreno-Ocampo, lead prosecutor for the International Criminal Court (ICC) [official websites]. In joining the council, China agreed to cooperate with ICC decisions. The ICC charged al-Bashir [JURIST report] with three counts of genocide [warrant, PDF] in relation to the Darfur conflict [BBC backgrounder], in addition to seven counts of war crimes and crimes against humanity that were filed against al-Bashir [JURIST report] in March 2009.

The international community and human rights groups have urged various countries to arrest al-Bashir while he has been present inside their borders. Earlier this week, AI called on Malaysia [JURIST report] to withdraw its invitation to al-Bashir and arrest him if he travels to the country. Similarly, the ICC urged Djibouti to arrest al-Bashir [JURIST report] in May. The ICC requested that Kenya arrest al-Bashir [JURIST report] during an October visit, his second visit to the country in the same year. Previously, al-Bashir had visited Kenya for the signing of the country's new constitution [JURIST report]. Following his visit, the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute for the violation in not arresting al-Bashir. Also following his August visit, former UN Secretary-General Kofi Annan urged Kenya to reaffirm its cooperation with the ICC by arresting al-Bashir [JURIST report]. In July, the ICC called for al-Bashir's arrest during his visit to Chad [JURIST report], marking the first visit to an ICC member state since the warrants were issued. The ICC also reported Chad [decision, PDF] to the Security Council and Assembly of States Parties.




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ICC asks for victim statements in preparation for Ivory Coast investigation
Julia Zebley on June 17, 2011 11:08 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] on Friday issued a public notice [text] for victims of violence in the Ivory Coast to give statements and advise if the ICC should proceed with a formal investigation. Victims have 30 days to file a statement. The statement says Moreno-Ocampo will make an investigation request "shortly," although in May he said he had submitted a request [JURIST report]. Last month, President Alassane Ouattara [BBC profile] asked the ICC to launch an investigation [JURIST report] into alleged crimes committed as a result of the disputed presidential elections last November. Violence has been ongoing since last year's disputed election, with factions of Ouattara and ousted former president Laurent Gbagbo [BBC profile] still engaging in retaliatory killings [JURIST report].

Earlier this week, the Ivory Coast announced it would establish a commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections last November. An official for the International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo earlier this month. In April, Human Rights Watch urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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UN rights council passes first gay rights resolution
Julia Zebley on June 17, 2011 10:08 AM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] passed the "Human rights, sexual orientation and gender identity" resolution [text, PDF] with a vote of 23-19 and 3 abstentions [UN webcast archive] on Friday. The resolution is the first to call for an end to sexuality discrimination worldwide and to recognize it as a "priority" for the UN. Although the resolution is "binding" to member nations of the UNHRC, it does not address any penalties for violating the act. The resolution "express(es) grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity." It also requests a study and panel to investigate international violence against homosexuals and trans-people. The resolution was introduced by South Africa, the only African nation to vote for its passage. Several African and Middle Eastern nations criticized [AFP report] South Africa and the bill, accusing the nation of "westernizing" and breaking from what "90 percent" of South Africans want, and decrying the UN trying to force controversial ideas with no legal basis on their countries.

The UN has faced difficulty passing resolutions on gay rights issues, due to no international consensus on the morality of homosexuality. Last year, UN Secretary General Ban Ki-moon [official website] called for countries around the world to abolish laws discriminating against gay and lesbian individuals [JURIST report]. Two years ago, the UN passed a gay rights declaration [text, PDF], which the US signed and sponsored [JURIST report]. The declaration, a nonbinding measure that does not have the full force of a resolution, called on states to end criminalization and persecution of homosexuals. This declaration was recalled by the new resolution. Although 85 countries signed the declaration [US Ambassador statement], 57 countries, primarily in Africa and the Middle East, signed an opposing statement. The year before, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement. As of the 2011 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) [advocacy website] State-Sponsored Homophobia report [text, PDF], 76 countries still criminalize same-sex relationships, and five enforce the death penalty against homosexuals.




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UN rights council extends mandate for investigation of Libya abuses
Maureen Cosgrove on June 17, 2011 8:51 AM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] on Friday decided to extend a mandate instructing a panel to investigate human rights abuses in Libya. The council, without voting, adopted a resolution [AP report] that orders the investigation of abuses in Libya to continue through the end of the year. The three-person commission appointed to investigate violence in Libya published a report early in June finding that Gaddafi's forces have committed crimes against humanity [JURIST report] and war crimes under orders from Gaddafi and other high-ranking officials. The commission's 92-page report said Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment, and other severe deprivations of physical liberties, torture, forced disappearances, and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."

Last month, International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] announced he is seeking arrest warrants [JURIST report] for Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two others in his inner circle on charges of crimes against humanity. The ICC has also 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 UNHRC 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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AG Holder defends prosecuting terror suspects in civilian courts
Zach Zagger on June 17, 2011 8:50 AM ET

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[JURIST] US Attorney General Eric Holder [official website] Thursday defended his plans to prosecute terror suspects in federal civilian courts, responding to harsh criticism from Senate Minority Leader Mitch McConnell (R-KY) [official website] urging two Iraqi-born terror suspects in Kentucky be sent to the Guantanamo Bay military detention facility. Holder gave an address at the American Constitution Society [official website] national convention saying, "our most effective terror fighting weapon [is] our Article III court system." Holder criticized what he called "fear-mongering" from members of Congress who have suggested that trying terror suspects in civilian courts harm the US's national security.
Politics has no place—no place—in the impartial and effective administration of justice. Decisions about how, where, and when to prosecute must be made by prosecutors, not politicians. And this is true for every case. ... So long as I am privileged to serve as the attorney general, I will defend the exclusive right of the executive branch to determine appropriate venues and mechanisms for all criminal trials. And I will continue to point—one indisputable fact, which has been proven repeatedly by this administration and the previous one, in disrupting potential attacks and effectively interrogating, prosecuting, and incarcerating terrorists, there is quite simply, no more powerful tool than our civilian court system.

Earlier this week, McConnell made a speech on the Senate floor arguing to move terror suspects Waad Ramadan Alwan and Mohanad Shareef Hammadi from Kentucky to Guantanamo. He said:

The administration likes to tout its confidence in the US legal system. Well, I don't believe the American people need to try enemy combatants in our towns and cities to prove that our court system works. Prosecution is important. But let's be clear: prosecution is not our ultimate goal in this war. Our goal is to capture or kill those who want to kill us here and abroad and who are plotting even now—as this case clearly proves—to wreak havoc on our troops overseas. This is very simple: those we capture should be interrogated and, if necessary, indefinitely detained and tried in a military setting. Through these interrogations additional intelligence can be derived that leads to additional targets thereby weakening Al Qaeda and other associated terror groups at a moment when they are vulnerable.

Holder has consistently advocated [JURIST report] that terror suspects should be tried in civilian courts though has not found support from Congress. In April, Holder announced that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [JURIST report] for their roles in the 9/11 terrorist attacks. Holder, who wanted the accused be tried before a federal civilian court [JURIST report], referred the cases to the Department of Defense (DOD) [official website] after Congress imposed a series of restrictions [JURIST report] barring the transfer of Guantanamo detainees to the US. Holder refused to delay the trial any longer for the sake of the victims of the 9/11 attacks and their families, explaining that the restrictions are not likely to be repealed in the immediate future. The Obama administration changed its position despite repeated appeals from rights groups to utilize civilian courts over military commissions for the trials of suspected terrorists. However, international pressure to use civilian courts remains. Last March, UN Special Rapporteur on human rights and counterterrorism Martin Scheinin [official website] called on the Obama administration to hold civilian trials [JURIST report] for Mohammed and other suspected terrorists saying that the military commissions system is fatally flawed and cannot be reformed.




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Mexico, Central American countries join challenge to Georgia immigration law
Julia Zebley on June 16, 2011 3:22 PM ET

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[JURIST] The governments of Mexico and several other countries, along with the Anti-Defamation League [advocacy website] filed amicus briefs on Thursday in support of the American Civil Liberties Union (ACLU) [advocacy website] class action lawsuit [JURIST report] against Georgia's new immigration law [HB 87 text]. Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Peru all filed briefs in support of the ACLU [Atlanta Journal-Constitution report]. In its brief, Mexico said the law will irreparably harm diplomatic interests between the US and Mexico. The suit is scheduled for its first hearing on Monday, where Judge Thomas Thrash is expected to rule on the ACLU's request for an injunction [JURIST report] and Georgia's motion for dismissal.

The Georgia bill was signed into law [JURIST report] last month by Governor Nathan Deal [official website]. HB 87 allows law enforcement officers to ask about immigration status when questioning suspects in criminal investigations. The law also imposes fines and prison sentences of up to one year for anyone who knowingly transports illegal immigrants during the commission of a crime and requires businesses to use the federal E-Verify [official website] system to check the immigration status of potential employees, providing that workers convicted of using fake identification to gain employment could face up to 15 years in prison and $250,000 in fines. Also last month, the ACLU filed two similar lawsuits to block immigration laws in both Indiana and Utah [JURIST reports]. A decision by the US Supreme Court [official website; JURIST news archive] last month on preemption of an state immigration laws may have an impact on such lawsuits. The court held in Chamber of Commerce v. Whiting [Cornell LII backgrounder; JURIST report] that a controversial Arizona employment law [materials] that imposes penalties on employers who hire illegal immigrants is not preempted by the Immigration Reform and Control Act (IRCA) [text].




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DOJ appeals decision striking down ban on direct corporate campaign contributions
Zach Zagger on June 16, 2011 3:21 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed a notice of appeal [text, PDF] Thursday in the US Court of Appeals for the Fourth Circuit [official website] to challenge a decision to strike down a federal law that bans corporations from making direct campaign contributions to candidates. The appeal is challenging a decision last month by Judge James Cacheris to dismiss a criminal count [JURIST report] against two men charged with making illegal campaign contributions, citing the controversial Supreme Court decision in Citizens United [opinion; JURIST report]. Fundraisers, William P Danielczyk Jr, chairman of Virginia-based Galen Capital, and its secretary and treasurer, Eugene R Biagi, were indicted for illegally reimbursing individuals for almost $200,000 in contributions to Hillary Clinton's 2006 senate and 2008 presidential primary campaign.

In dismissing the count, Cacheris stated that Citizens United had dissolved the legal underpinnings for the federal ban against direct contributions from corporations to a candidate. Commentators have noted that Cacheris' opinion does not address the 2003 Supreme Court decision in Federal Election Commission v. Beaumont [opinion], which specifically upheld a ban on corporate contributions to election campaigns. Although Cacheris does acknowledge that another federal judge ruled on the same question but upheld the law, his opinion is silent on the Eighth Circuit's appellate ruling likewise upholding the ban. Cecheris' ruling does not follow the distinction between expenditures and contributions [AP report] upheld by the Eighth Circuit. Despite strong reactions to the ruling, the net impact is unclear because current election law limit individuals to $2,500 per candidate in each election, while corporate political action committees may contribute up to $5,000.




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Supreme Court allows class action suit against Bayer
Julia Zebley on June 16, 2011 2:34 PM ET

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[JURIST] The US Supreme Court [official website] on Thursday unanimously reversed [opinion, PDF] the lower court in Smith v. Bayer Corp. [Cornell LII backgrounder; JURIST report], allowing a class action lawsuit against the company to proceed. The Court held that under the re-litigation exception of the Anti-Injunction Act [28 USC § 2283], a district court exceeded its authority when it enjoined Smith from seeking class certification in state court after denying certification to a similar class. They also declared issues in the federal case and the state tribunal case different enough to warrant separate trials. Finally, the Court declared that the district court did not have personal jurisdiction over Smith, who was not a member of the initial class, and acted improperly when they denied him the ability to relitigate. Justice Elena Kagan delivered the opinion.
This case, indeed, is little more than a rerun of Chick Kam Choo. A federal court and a state court apply different law. That means they decide distinct questions. The federal court's resolution of one issue does not preclude the state court's determination of another. It then goes without saying that the federal court may not issue an injunction. The Anti-Injunction Act's re-litigation exception does not extend nearly so far.
The opinion emphasized that there are few and narrow exceptions federal courts to enjoin state courts, and this, particularly, was not one of them.

In the case, Keith Smith filed a class action suit against Bayer [corporate website] in West Virginia state court due to claims arising out of Bayer's sale of an allegedly hazardous prescription drug called Baycol. However, George McCollins had previously sued Bayer in federal court seeking class action certification the month before. Eventually, McCollins' class did not receive certification. Due to this, Bayer argued that Smith's class claim, in state court, should also be denied certification under issue preclusion, and was granted an injunction on Smith's proceedings.




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Ivory Coast initiates investigation into post-election violence
Maureen Cosgrove on June 16, 2011 1:50 PM ET

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[JURIST] The Ivory Coast on Wednesday announced it would establish a commission to investigate alleged crimes committed as a result of the disputed presidential elections last November. Ivory Coast President Alassane Ouattara [BBC profile] vowed to probe human rights violations [AFP report] and violence that has riddled the nation since the election, after which Ouattara was eventually declared the winner. Former president Laurent Gbagbo [BBC profile] had to be forcefully removed from office and is currently under the protection of UN personnel [CNN report]. UN High Commissioner for Human Rights Navi Pillay [official profile] presented her report [press release] on the situation in the Ivory Coast before the Human Rights Council (HRC) [official website] and expressed concern over human rights abuses by government forces, including rape, executions, and torture. Also on Wednesday, Human Rights Watch (HRW) [advocacy website] reported [text; press release] that it had documented human rights violations by both Ouattara and Gbagbo, and commended the Ivory Coast Commission of Inquiry, established by the HRC, for its investigation. However, HRW criticized the commission for refusing to disclose a list of perpetrators most responsible for the rights violations. Corinne Dufka, senior West Africa researcher at HRW, also urged the Ouattara government to make more progress on its promises:
The Ouattara government needs to move beyond vague promises of accountability. While President Ouattara has notably asked for the International Criminal Court's assistance, national trials will also be needed. The Ivorian government should promptly investigate crimes by both sides and ask for donors' assistance so it can hold fair, credible trials.
HRW insisted that the commission commence judicial proceedings against suspects and release those who have been detained without being charged, as well as continue investigating the international law violations until September.

Earlier this month, an official for the International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of Gbagbo. Last month, Ouattara asked the International Criminal Court (ICC) [official website] to launch an investigation [JURIST report] into alleged crimes committed as a result of the disputed presidential elections last November. Chief Prosecutor Luis Moreno-Ocampo [official profile] then submitted a request to the court [JURIST report] to begin an investigation into the Ivory Coast political conflict, but a formal investigation has yet to begin. In April, HRW urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also last month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Supreme Court: individuals may challenge federal law for violating states' rights
Zach Zagger on June 16, 2011 1:34 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] Thursday ruled in Bond v. United States [Cornell LII Backgrounder; oral arguments transcript; JURIST report] that a private individual can challenge whether a federal criminal law passed to implement an international treaty is valid under the Tenth Amendment [text]. Carol Anne Bond was charged with burning her husband's mistress using poisonous chemicals and was indicted under a federal law [18 USC § 229(a) text] created to stop the distribution and use of chemical weapons passed by Congress to comply with the 1993 Chemical Weapons Convention [UN backgrounder]. After losing on a motion to dismiss the charges on grounds that the law violated the Tenth Amendment, Bond entered a conditional guilty plea and renewed her claim on the same grounds. The US Court of Appeals for the Third Circuit [official website] ruled that Bond lacked standing [opinion, PDF] to challenge the constitutionality of the statute on the basis of the Tenth Amendment because she was an individual acting on her own and not with a state, relying on Tennessee Elec. Power Company v. TVA. However, the 9-0 Supreme Court opinion by Justice Anthony Kennedy disagreed, holding that Bond has standing to challenge whether the federal law interferes with the powers left only to the states. The court said:
to argue that the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert the legal rights and interests of States and States alone. That, however, is not so. ... Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State.
The government initially argued that Bond did not have standing to sue on Tenth Amendment grounds but informed the court that it had changed its position. Instead, the government argued [Brief for Peitioner, PDF] that Bond only had standing to challenge whether a federal law "interferes with a specific aspect of state sovereignty" but not whether Congress by passing the law had exceeded its enumerated powers. But the Court said this argument was flawed because:
the principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, and action that exceeds the National Government's enumerated powers undermines the sovereign interests of States.
Justice Ruth Bader Ginsburg concurred, joined by Stephen Breyer, arguing that Bond had standing because "Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law." The ruling in this case may also affect Congress's authority to pass laws implementing treaties passed by the President.



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Alabama governor signs bill banning abortions after 20 weeks
Maureen Cosgrove on June 16, 2011 1:08 PM ET

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[JURIST] Alabama Governor Robert Bentley [official website] on Wednesday signed into law [press release] a bill [HB 18 text, PDF] that bans abortions [JURIST news archive] after 20 weeks of pregnancy. The bill contains no exceptions for cases of rape or incest, but permits an abortion if necessary to prevent the death of or serious risk of injury to the woman. The bill also requires physicians to report instances of abortions to the Department of Public Health [official website] and requires the department to issue an annual public report containing abortion-related statistics. Physicians who perform abortions in violation of the law will face criminal charges, injunctions, as well as actions for actual damages brought by the both the mother and father of the unborn child. Current Alabama state law permits abortions [Reuters report] prior to the stage of fetal viability, usually between 24 and 26 weeks gestation. The Alabama Senate and House of Representatives [official websites] handily approved the bill [JURIST report] in early June. Bentley said in a statement, "I believe that life begins at conception and I signed this bill to further commit my promise to protect the life of an unborn child." The law will go into effect on September 1, 2011.

Last week, the Iowa House of Representatives [official website] approved a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy [JURIST report], making it the most restrictive abortion law in the country. The Obama administration took a stand earlier this month against a controversial Indiana law that prevents health care providers with abortion services from receiving Medicaid funds, saying the law violates federal law [JURIST report]. Several other states have acted recently to tighten restrictions on abortions. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy websites] filed a lawsuit challenging a South Dakota law [JURIST reports] requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton [official website] vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry [official website] signed into law a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Ohio, Oklahoma, Kansas and Idaho [JURIST reports].




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Supreme Court rules evidence not excluded when law changes between search and trial
Julia Zebley on June 16, 2011 12:12 PM ET

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[JURIST] The US Supreme Court [official website] on Thursday ruled [opinion, PDF] 7-2 in Davis v. United States [Cornell LII backgrounder; JURIST report] that when the law for what constitutes a legal search changes between a search and an accompanying trial, the evidence is not excluded. Justice Samuel Alito's opinion states that because suppression of the evidence would do nothing to deter other officers from committing the same error, there's no reason to enforce the exclusionary rule.
Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis's claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield "meaningfu[l]" deterrence, and culpable enough to be "worth the price paid by the justice system." The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis's Fourth Amendment rights deliberately, recklessly, or with gross negligence. Nor does this case involve any "recurring or systemic negligence" on the part of law enforcement. The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case. Indeed, in 27 years of practice under Leon's good-faith exception, we have "never applied" the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct.
Justice Sonia Sotomayor filed a concurrence. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the new standard created in Arizona v. Gant [Cornell LII backgrounder; JURIST report], which the police unknowingly violated, is enough to find a remedy in suppression of evidence. Breyer believed that had Arizona v. Gant not been decided, there would have been a similar Fourth Amendment violation regardless in the present case to cause a finding similar to Gant, regardless of whether the police acted in good faith or not.

Relying on the standard created in New York v. Belton [text], police arrested Willie Davis and searched his vehicle while he was handcuffed at the scene, finding an unregistered revolver. In the interim between Davis' arrest and trial, Arizona v. Gant was decided, which overturned Belton and created a "rule" that police could only search the vehicle for what was in the immediate grasp of the suspect. The previous Belton standard had allowed arresting officers to search the passenger compartment. The lower court held that the search was illegal under Gant, but since Gant had not been decided, the police were acting in good faith, and thus did not exclude the evidence.




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New Hampshire high court advises legislature it cannot force AG to join health care lawsuit
Julia Zebley on June 16, 2011 11:23 AM ET

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[JURIST] The New Hampshire Supreme Court [official website] ruled in an advisory opinion [text, PDF] on Wednesday that the legislature cannot force Attorney General Michael Delaney [official website] to join a lawsuit contesting the Patient Protection and Affordable Care Act (PPACA) [text; JURIST news archive]. The New Hampshire Senate [official website] asked for the opinion in reaction to HB 89 [text], a bill passed by the New Hampshire House of Representatives [official website], which would require Delaney to join "as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al." The Supreme Court stated that this was beyond the legislature's function.
HB 89 would usurp this essential power because it would divest the executive branch entirely of its authority to decide whether it to initiate a particular civil action on the part of the State. The executive branch, not the legislative branch, is empowered to protect the interests of the people by taking care that the laws are faithfully executed.
House Majority Leader DJ Bettencourt stated he believed the bill was protecting New Hampshire citizens [Nashua Telegraph report] from health care reform, rather than usurping executive power.

The US Court of Appeals for the Eleventh Circuit [official website] heard oral arguments earlier this month in the suit New Hampshire was to join. Florida's lawsuit, filed in March and joined by 20 states [JURIST reports], most recently Kansas [JURIST report] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment [texts] of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states.




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Supreme Court rules age is a factor in Miranda custody analysis
Maureen Cosgrove on June 16, 2011 11:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in JDB v. North Carolina [Cornell LII backgrounder; JURIST report] that 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]. JDB, a middle-school student, was removed from a classroom and questioned by two law enforcement officers about an incident that took place outside the school campus. The juvenile subsequently made incriminating statements, but was not advised of his Fifth Amendment rights pursuant to Miranda. 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]. Miranda warnings are recited to protect a suspect from the inherently coercive nature of police questioning and the Miranda custody analysis requires an examination of the objective circumstances surrounding the interrogation to determine whether a reasonable person would have felt free to leave. Justice Sonia Sotomayor, writing for the majority, pointed out that children lack the requisite understanding and reasoning skills to make mature judgments:
In some circumstances, a child's age "would have affected how a reasonable person" in the suspect's position "would perceive his or her freedom to leave." That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis.
She indicated that the law has traditionally operated on this assumption and that the court's ruling "does not mean that a child's age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore." The case was reversed and remanded for further consistent proceedings in the North Carolina Supreme Court.

Justice Samuel Alito, writing on behalf of the dissenters, expressed his discontent with the majority's holding, arguing that considering age tarnishes the clear, prophylactic rule established in Miranda. Age, Alito contends, is a subjective circumstance that forces the evaluator to speculate about the suspect's state of mind, therefore, the new rule places a heavy burden on police. Moreover, the dissent suggests that the new rule unduly expands the otherwise rigid Miranda standard and presents a slippery slope which would permit other subjective circumstances, like intelligence and cultural background, to inform the custody analysis.




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Supreme Court rules judges cannot impose or lengthen prison terms for rehabilitation
Zach Zagger on June 16, 2011 10:43 AM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] Thursday ruled [opinion, PDF] in Tapia v. United States [Cornell LII Backgrounder] that a federal sentencing law does not permit sentencing judges to impose or lengthen prison terms for the purpose of fostering the defendant's rehabilitation. Alejandra Tapia was convicted of smuggling unauthorized aliens into the US, for which the guidelines recommended a sentence between 41 and 51 months. The judge for the US District Court for the Southern District of California sentenced Tapia to 51 months with the stated reason that the judge wanted the Tapia to facilitate the completion of the state's 500-hour drug abuse treatment program [RDAP fact sheet text]. The opinion of the court by Justice Elena Kagan held that 18 USC § 3582(a) [text] does not authorize a sentencing judge to impose a sentence in order for a defendant to take part in a rehabilitation program since the provision "recogniz[es] that imprisonment is not an appropriate means of promoting correction and rehabilitation." The court said that Congress passed the Sentencing Reform Act of 1989 in order to reduce the disparities in sentencing for similarly situated defendants when judges were left to their own "almost unfettered discretion." Thus, taken Congress's clear proscription to not consider rehabilitation it is improper for judges to take that into consideration. The court said:
We note first what we do not disapprove about Tapia’s sentencing. A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important matters. ... So the sentencing court here did nothing wrong—and probably something very right—in trying to get Tapia into an effective drug treatment program. But the record indicates that the court may have done more—that it may have selected the length of the sentence to ensure that Tapia could complete the 500 Hour Drug Program. ... the court may have calculated the length of Tapia's sentence to ensure that she receive certain rehabilitative services. And that a sentencing court may not do.
Justice Sonia Sotormayor concurred, joined by Samuel Alito, agreeing with the court's holding but expressing reservations of whether the judge violated it. Sotomayor argued that the judge also properly relied on deterring further criminal behavior in imposing a sentence at the high end of the guidelines but ultimately agreed with the court saying, "I cannot be certain that he did not lengthen Tapia's sentence to promote rehabilitation in violation of §3582(a)."

The decision overturns the US Court of Appeals for the Ninth Circuit [official website], which held [opinion, PDF] that the trial judge made no error when basing Tapia's sentence on speculation that she could enter and complete the state's rehabilitation program. The US Court of Appeals for the Eighth Circuit [official website] has similarly held that a longer sentence to promote rehabilitation is permissible, but the US Courts of Appeals for the Second, Third, Eleventh and DC Circuits have held that it is prohibited [issue list, PDF].




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Indonesia cleric sentenced to 15 years in prison on terror conviction
Maureen Cosgrove on June 16, 2011 10:30 AM ET

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[JURIST] Indonesian cleric Abu Bakar Bashir [JURIST news archive] was sentenced Thursday to 15 years in prison for his involvement with a terrorist training camp in the Indonesian province of Aceh to prepare Islamic radicals to carry out attacks in Jakarta. Prosecutors said Bashir provided more than $62,000 to the group [AFP report], which was allegedly planning attacks modeled after the 2008 Mumbai terror attacks [JURIST news archive] and targeting high-profile members of the Indonesian government. Bashir was found guilty [AP report] of inciting terrorism in connection with the terrorist training camp. He was not convicted, however, of funding terrorist activities because there was not enough evidence to prove Bashir's money contributed to purchasing guns for use at the training camp. The 72-year-old said he would appeal the sentence because it ignores Sharia law [JURIST news archive].

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




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Obama releases report justifying actions and cost in Libya
Julia Zebley on June 16, 2011 9:04 AM ET

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[JURIST] US President Barack Obama [official website] released a report [text] to Congress late on Wednesday, justifying the continued air strikes on Libya despite presumptive violation of the 1973 War Powers Resolution [50 USC § 1541 et seq.]. The report, "United States Activities in Libya," was released in response to recent criticisms of American intervention in Libya, including: a resolution [bill materials] passed in the US House of Representatives [official website] calling for withdrawal without congressional approval; a letter [text] to Obama from House Speaker John Boehner (R-OH) [official website] warning that he was within five days of violating the War Powers Resolution; and Representatives Dennis Kucinich (D-OH) and Walter Jones (R-NC) [official websites] filing a lawsuit [JURIST report] seeking an injunction on the Libya action. The report argues that America is merely providing support as is required by several international treaties and does not have enough participation in the conflict to declare war.
The President is of the view that the current US military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because US military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. US forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
The report endorsed a pending resolution [bill materials] that would provide some congressional support for continued efforts in Libya, though not approval of declaring war. The report also detailed that the US has spent USD $716 million and will spend $1.1 billion by the end of September.

In March, US Representative Justin Amash (R-MI) [official website] announced [press release] legislation requiring an immediate halt to military action in Libya [JURIST report] 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 of the Constitution while declaring that Obama must obtain authorization before any further military action is conducted. The bill is still in committee and has yet to be voted on [bill materials]. 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] since March. The action began after the UN Security Council approved Resolution 1973 [text], 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. 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. JURIST Guest Columnist Jordan Paust [official profile] argues that the War Powers Resolution does not limit [JURIST op-ed] the president's options in Libya due to his constitutional authority and international obligations.




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Wisconsin unions sue to block collective bargaining law
Maureen Cosgrove on June 16, 2011 9:00 AM ET

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[JURIST] Ten Wisconsin unions on Wednesday filed [press release] a lawsuit in federal court challenging the state's new collective bargaining law. The lawsuit, which was filed in the US District Court for the Western District of Wisconsin [official website], alleges that the Budget Repair Bill [Senate Bill 11 text, PDF] violates the First and Fourteenth Amendments [texts]. According to the plaintiffs, the bill discriminates among groups of public employees and eliminates basic union rights, like bargaining, organizing and associating. Phil Neuenfeldt, president of Wisconsin State AFL-CIO [official website], condemned Wisconsin Governor Scott Walker [official website] for implementing the law and described the law as unconstitutional:
Not only have Scott Walker and his deep-pocketed corporate allies sought to silence the voices of Wisconsin workers, they have also violated those workers constitutional rights. Scott Walker has created two classes of public sector workers and that is unconstitutional. When a legislature discriminates among classes of workers, especially when doing so has more to do with political payback than with any legitimate reasoning, the law has been violated.
The lawsuit seeks to enjoin several provisions of the Budget Repair Bill, namely, those that prohibit unions from bargaining and associating freely. The unions do not, however, seek to enjoin the pension and health insurance contribution requirements, acknowledging that "Wisconsin workers would do their part to share in the sacrifice and keep our state moving forward."

The Budget Repair 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 increase, which will be capped by the Consumer Price Index. The Wisconsin Supreme Court [official website] upheld [opinion, text; JURIST report] the Budget Repair Bill on Tuesday, overruling the Dane County Circuit Court [official website] finding [JURIST report] that legislators had violated the "open meetings" rule. In March, the Dane County Circuit Court judge temporarily enjoined the law from being published, and then issued an order [JURIST reports] clarifying that the temporary restraining order prohibits not only publication of the bill, but implementation of its provisions as well. The judge's temporary restraining order stemmed from a lawsuit [JURIST report] filed earlier in March by District Attorney Ismael Ozanne claiming that Republican legislators passed the bill in violation of Wisconsin's open meetings law. The bill was signed [JURIST report] into law by Walker on March 11.




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New York Assembly again passes same-sex marriage bill, stalls in Senate
Zach Zagger on June 16, 2011 8:54 AM ET

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[JURIST] The New York State Assembly [official website] passed a bill [A08354 text, materials] to legalize same-sex marriage [JURIST news archive] Wednesday, but the fate of the bill is uncertain as it moves to the State Senate [official website]. The Assembly passed [press release] the Marriage Equality Act, drafted by Governor Andrew Cuomo (D) [official website], Wednesday evening 80-63, sending it to the Senate. The Assembly has passed same-sex marriage bills before both in 2007 and then twice in 2009. The bill would enable same-sex couples to be married across the state and provide them with equal marriage rights to heterosexual couples. But the bill specifies that no clergy member will be forced to perform a marriage ceremony. Senate majority leader Dean Skelos (R) [official website] sent the bill to conference where it has stalled. Skelos controls whether the bill will come to the Senate floor for a vote. It is unclear whether the bill has enough votes in the Senate to pass.

Though New York has yet to legalize same-sex marriage it does recognize such marriages performed in other states and has previously considered legalizing it. Earlier this year, the New York State Supreme Court Appellate Division, First Department [official website] upheld a lower court decision [JURIST reports] allowing the surviving spouse of a same-sex marriage legally performed in Canada to inherit the deceased spouse's estate. Former New York governor David Paterson (D) [official profile] introduced same-sex marriage legislation in April 2009, and in May 2008, issued a mandate [JURIST report], requiring that any and all out-of-state same-sex marriages be recognized as legal within the state of New York. The mandate was supported by an intermediate appellate court ruling in Martinez v. County of Monroe [opinion, PDF; JURIST report], holding that legal same-sex marriages performed outside the state are entitled to recognition in New York. In September of that year, the New York Supreme Court for the Bronx (lowest court) [official website] dismissed [JURIST report] a challenge to Paterson's directive. In 2007, former New York governor Eliot Spitzer (D) [official website] also introduced a bill to legalize same-sex marriage.




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UN denies reports it ordered close of Cambodia genocide investigation
Zach Zagger on June 15, 2011 1:45 PM ET

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[JURIST] The UN on Tuesday denied reports it instructed the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] to close further investigations into war crimes committed under the Khmer Rouge [BBC backgrounder; JURIST news archives] regime. In a controversial move, the ECCC closed Case 3 [materials] in April, one of four Cases supposed to be brought for atrocities committed under the Khmer Rouge regime. Cambodia media reports say that the five UN staff resigned [AFP report] in protest after a decision by the chamber to not pursue Case 3. In a published statement [press release] a spokesperson for UN Secretary-General Ban Ki-Moon [official website] said:
the United Nations categorically rejects media speculation that we have instructed the Co-Investigating Judges to dismiss [Case 3]. It similarly follows that the United Nations will not comment on issues which remain the subject of judicial consideration, nor speculate on actions that should or should not be taken by the judges or prosecutors in any case. As is normal practice, the United Nations will also not comment on internal United Nations administrative or staffing processes related to the ECCC. The United Nations will ensure that the international component of the ECCC, including the Office of the Co-Investigating Judges, has sufficient resources to undertake its work.
The statement said that the investigations are not to be conducted in public and must remain confidential as is consistent with the civil law system of Cambodia. Earlier this week, the Open Society Justice Initiative [advocacy website] criticized [BBC report] what it called "blatant" attempts [report, PDF] by the Cambodian government to influence the proceedings and urged the UN and the international community to do more to defend the judicial independence of the ECCC. Some critics believe that the investigation into ECCC Case 3 was ended prematurely [AP report] after demands by Cambodian Prime Minister Hun Sen [BBC profile] to limit the prosecutions.

Doubts about the legitimacy and independence of the ECCC have been raised since the decision to close ECCC Case 3. Last month, a coalition of more than 30 rights groups and development organizations in Cambodia issued an open letter [JURIST report] urging the ECCC to embrace a greater degree of transparency. In the letter, the groups outline "grave concerns" that the highly classified nature of Case 3 and Case 4 [materials] betrays a lack of "genuine" effort to bring the former members of the Khmer Rouge [BBC profile; JURIST news archives] to justice and implicates that the "impartiality, integrity and ... independence of ECCC judges are being tainted." Earlier that week, ECCC judges ordered Co-Prosecutor Andrew Cayley to retract public statements requesting further investigation [JURIST report] into Case 3. Cayley said the information was released pursuant to tribunal rules "to ensure that the public is duly informed about ongoing ECCC proceedings." The judges, however, said Cayley breached the tribunal's confidentiality and ordered the retraction. The only ECCC conviction since its founding in 2006 is of Kaing Guek Eav [ECCC backgrounder; JURIST news archive], better known as "Duch," a former prison chief at the notorious Toul Sleng prison under the Khmer Rouge. In March, he appealed his 35-year sentence for war crimes and crimes against humanity handed down by the ECCC [JURIST reports] last July.




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Kenya selects 5 appointees to serve on first Supreme Court
Maureen Cosgrove on June 15, 2011 1:27 PM ET

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[JURIST] The Judicial Service Commission (JSC) [official website] of Kenya on Wednesday selected five appointees to serve on the nation's first Supreme Court. After taking a week to interview 25 candidates, the JSC panel selected [KBC report] one woman and four men to present to Kenyan President Mwai Kibaki [official profile] for appointment. The list of nominations was submitted to Kibaki for direct appointment because Article 166(1)(b) of Kenya's Constitution [text, PDF] exempts the appointees from questioning by the Parliament of the Republic of Kenya [official website]. The Chief Justice (CJ), Deputy Chief Justice (DCJ) and Director of Public Prosecution (DPP) had already been nominated by the JSC, appointed by the president, and approved by parliament pursuant to the country's new constitution. The Constitutional Implementation Oversight Committee, in a report [text, PDF] detailing the criteria and process for selecting the CJ, DCJ and DPP, recommended that interview panels evaluating future nominations also create documents describing the methodology for the selection process.

In February, Kenneth Marende, Speaker of the Kenyan National Assembly [official website], ruled [text; JURIST report] that the CJ, DCJ and DPP nominations violated a constitutional provision. The High Court of Nairobi [official website] also ruled that the nominations were unconstitutional because they violated promises of gender equality [JURIST report]. Kibaki signed a new constitution [JURIST report] into law in August 2010 as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority, among which are the creation of a supreme court and senate. The new constitution was approved [JURIST report] by popular referendum earlier that same month. Voting on the constitution took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST report] in 2007. The creation of a new constitution was part of a power-sharing agreement [JURIST report] reached in 2009 between Kibaki and opposition leader Prime Minister Raila Odinga [official website] that brought to an end the civil unrest that followed the contested election. Election officials sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.




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Accused Rwanda war criminal transferred to UN detention facility
Zach Zagger on June 15, 2011 12:05 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] announced Wednesday that Rwandan genocide suspect and former Hutu militia leader Bernard Munyagishari was transferred from the Democratic Republic of the Congo (DRC) to the UN Detention Facility in Tanzania on Tuesday. He is set to make his initial appearance before the ICTR to answer to charges of genocide and crimes against humanity, including rape. He is alleged to have recruited, trained and led a militia group that killed and raped Tutsi women during the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Munyagishari was arrested [JURIST report] last month in the DRC. Nine major perpetrators of the 1994 genocide remain at-large.

Earlier last month, the ICTR convicted [JURIST report] former Rwandan army chief Augustin Bizimungu and three others. Bizimungu was sentenced to 30 years in prison while two others, Francois-Xavier Nzuwonemeye and Innocent Sagahutu, to 20 years in prison and Augustin Ndindiliyimana to time served since his arrest in 2000. Bizimungu was found guilty on six counts of genocide and crimes against humanity for murder, extermination and rape in addition to violations of Common Article 3 of the Geneva Conventions [text]. Last December, the ICTR sentenced [JURIST report] former Rwandan Armed Forces lieutenant Ildephonse Hategekimana to life imprisonment after convicting him on charges of genocide and crimes against humanity. The court found Hategekimana guilty of three counts of genocide stemming from his involvement in the 1994 Rwandan genocide, specifically in the massacre of civilian Tutsis in the Rwandan town of Butare.




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US lawmakers file suit against Obama for continuing actions in Libya
Julia Zebley on June 15, 2011 12:04 PM ET

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[JURIST] A group of 10 US congressmen filed a lawsuit [complaint, PDF] against President Barack Obama on Wednesday for circumventing Congress' authority by increasing military strikes against Libya. Representatives Dennis Kucinich (D-OH) and Walter Jones (R-NC) [official websites] held a press conference announcing [press release] the filing in the US District Court for the District of Columbia [official website]. Arguing that Obama is in violation of Article 1, Section 8 [Cornell LII backgrounder] of the US Constitution, which grants Congress the power to declare war, the representatives are seeking injunctive and declaratory relief:
The Libyan operations ordered by President Obama constitute "war" for the purpose of Article I, Section 8, Clause 11 of the Constitution. President Obama prosecuted the war without a declaration of Congress with the use of funds never approved for such a war. These actions have avoided a public vote on a war that is, according to recent poll, only supported by twenty-three percent of Americans. ... Obama's war in Libya is precisely what the Framers opposed—and thought they had barred—in requiring an open, public declaration for wars. The Obama Administration has read the mandatory consent of Congress out of the Constitution and replaced it with a purely discretionary power of the President to commence war with or without congressional approval. As members of Congress, the Plaintiffs assert the right to challenge a per se violation of Article I of the Constitution as well as the violation of statutory laws governing the commencement and funding of any undeclared war.
The complaint also alleges violations of the 1973 War Powers Resolution [50 USC § 1541 et seq.]. On Tuesday, Speaker of the House John Boehner (R-OH) [official website] sent a letter [text] to Obama warning that he was within five days of violating the War Powers Resolution and demanded an explanation. Later on Wednesday, White House Press Secretary Jay Carney addressed Libya in the daily briefing [C-Span report], stating that because there are no troops on the ground, there is no war and thus no violation of the War Powers Resolution.

In March, US Representative Justin Amash (R-MI) [official website] announced [press release] legislation requiring an immediate halt to military action in Libya [JURIST report] 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 of the Constitution while declaring that Obama must obtain authorization before any further military action is conducted. The bill is still in committee and has yet to be voted on [bill materials]. 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] since March. The action began after the UN Security Council approved Resolution 1973 [text], 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. 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. JURIST Guest Columnist Jordan Paust [official profile] argues that the War Powers Resolution does not limit the president's options [JURIST op-ed] in Libya due to his constitutional authority and international obligations.




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UN rights body urges investigation of Syria abuses
Maureen Cosgrove on June 15, 2011 11:32 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] on Wednesday published [press release] a preliminary report [text, PDF] describing human rights violations in Syria and calling for an investigation into government-authorized abuses related to pro-democracy protests that began earlier this year. The UN Human Rights Council (UNHRC) [official website] instructed UN High Commissioner for Human Rights Navi Pillay [official profile] to compile a report detailing the human rights conditions in Syria from May 15 to June 15. The report indicates that, initially, protestor grievances focused on corruption, discrimination, freedom of expression, participation in public affairs and the release of political prisoners, but later shifted to concerns about deprivation of basic fundamental rights and Syrian security force protest-control tactics. Pillay's report contains allegations that Syrian security forces used live ammunition against unarmed civilians, arbitrarily detained protestors, and tortured and killed over 1,000 people. The report called for the Syrian government to permit further investigation and reflected Pillay's optimism in collecting more information about the abuses:
The material currently before the High Commissioner is a matter of grave concern and reflects a dire human rights situation in the Syrian Arab Republic. The alleged breaches of the most fundamental rights on such a broad scale require thorough investigation and, with respect to the perpetrators, full accountability. The fact-finding mission mandated by the Human Rights Council would contribute substantially toward these ends. The High Commissioner thus renews her call to the Government of the Syrian Arab Republic to grant the access requested. The High Commissioner is hopeful that she will be able to provide a more extensive assessment of the human rights situation in Syria in her follow-up report to the 18th session of the Human Rights Council.
The Syrian government claims that armed protestors have killed over one hundred security forces, and continues to prohibit journalists and human rights groups from investigating.

There has been a major struggle to put an end to Syrian violence since the protests began earlier this year. Most recently, the UN expressed concern [press release; JURIST report] over violence in Syria and urged the Syrian government to stop using force against protesters. In June, Syrian and international human rights groups urged the International Criminal Court (ICC) [official website] to investigate the hundreds of civilian deaths during protests against Syrian President Bashar al-Assad [Al Jazeera profile]. The UNHRC, in an emergency special session in April, publicly condemned [text, PDF; JURIST report] the violence used by Syrian authorities against peaceful protesters. Pillay called for Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters. Also in April, al-Assad ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued. Earlier in the same month, Human Rights Watch (HRW) [advocacy website] reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." Pillay urged the Syrian government [JURIST report] in March 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 in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.




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Wisconsin Supreme Court upholds union bargaining law
Julia Zebley on June 15, 2011 11:25 AM ET

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[JURIST] The Wisconsin Supreme Court [official website] upheld [opinion text] the Budget Repair Bill [Senate Bill 11 text, PDF] on Tuesday, overruling the Dane County Circuit Court [official website] finding [JURIST report] that legislators had violated the "open meetings" rule. Ruling 4-3, the court stated that lower court Judge Maryann Sumi had "invaded the legislature's constitutional powers."
The court's decision on the matter now presented is grounded in separation of powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court's task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used.
Attorney General JB Van Hollen [official website] stated [press release], "The Court has vindicated our arguments that the Dane County Circuit Court overstepped its Constitutional authority when it sought to invalidate the Budget Repair Bill on the basis of an alleged violation of the Open Meetings Law." Governor Scott Walker [official website] was also pleased with the decision [WHBL report]. The law is reported to take effect on June 29 [Milwaukee Journal Sentinel report].

The Budget Repair 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 increase, which will be capped by the Consumer Price Index. In March, Sumi temporarily enjoined the law from being published, and then issued an order [JURIST reports] clarifying that the temporary restraining order prohibits not only publication of the bill, but implementation of its provisions as well. The judge's temporary restraining order stemmed from a lawsuit [JURIST report] filed earlier in March month by District Attorney Ismael Ozanne claiming that Republican legislators passed the bill in violation of Wisconsin's open meetings law.




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Taiwan passes controversial new law to remove judges
Zach Zagger on June 15, 2011 10:50 AM ET

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[JURIST] The Taiwan Judicial Yuan [official website] President Lai Hau-min announced Tuesday a new law to remove judges, but critics argue the measure could destroy judicial independence. The new law requires [Taiwan Today report] that judges be evaluated every three years by a committee that will include two academics and two impartial people from the community to be selected by the Judicial Yuan from recommendations from the Ministry of Justice and Taiwan Bar Association [official websites]. The committee then recommends disciplinary action, if necessary, to an internal tribunal made up of five senior judges, which has the final say. Victims of a crime or parties in a case may also request evaluation of a judge. A similar 27-member committee made up of 12 judges, 11 Judicial Yuan members, and four outsiders will be responsible for reviewing the appointment, transfer, rewarding, suspension and dismissal of judges. But many critics say that the measure removes judicial independence [AFP report] because judges can potentially be fired mid-term. The law was passed in response to corruption in the judiciary and in the wake of judges acquitting alleged child molesters.

Taiwan has had increasing difficulties with corruption. In November 2010, the Taiwan Supreme Prosecutors Office indicted 13 people [JURIST report], including three High Court judges, on charges of bribery, corruption and money laundering. The three judges were accused of accepting more than NT $5 million (USD $155,000) from former legislator Ho Chi-Hui [JURIST news archive] in exchange for clearing him of charges related to a corrupt land-development project. Last August, the Taipei Prosecutors Office [official website] conducted raids [JURIST report] on the homes of several High Court judges and 18 other locations searching for evidence related to the bribery deals. The three High Court judges were arrested [JURIST report] on corruption charges in July 2010 and were suspended from duty following their arrests. The judges' indictments follows the Taipei High Court's acquittal [CNA report] of former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] on charges of embezzling USD $20 million from banks [JURIST report] that sought to protect themselves during Chen's financial reform program. Chen is also appealing a 20-year sentence for corruption and embezzlement.




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DOJ opens grand jury investigation of Abu Ghraib homicide
Maureen Cosgrove on June 15, 2011 10:01 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday initiated a grand jury investigation into the torture and death of a detainee at Abu Ghraib prison [JURIST news archive] in Baghdad. Manadel Al-Jamadi was captured [JURIST report] by US Navy SEALs on November 4, 2003 and held in Abu Ghraib prison as a "ghost detainee," or unregistered prisoner, for his suspected involvement in the bombing of a Red Cross center in Baghdad that killed 12 people. Ninety minutes after entering Central Intelligence Agency (CIA) [official website] custody he was dead and his body was preserved in ice, allegedly to cover up the circumstances of his death. Al-Jamadi's death at the detention center was ruled a homicide [JURIST report] and the US military never revealed the exact circumstances, though reports show he died while suspended by his wrists, which were handcuffed behind his back. Federal prosecutor John Durham is leading [AP report] the torture and war crimes investigation.

In May 2010, the US Court of Appeals for the Armed Forces [official website] heard arguments [JURIST report] in the appeal of Army Spc. Charles Graner [JURIST news archive]. In February 2010, the same court upheld the convictions [JURIST report] of two soldiers found guilty of offenses committed as guards at Abu Ghraib. Army Spc. Sabrina Harman had been convicted [opinion, PDF; JURIST report] of conspiracy, dereliction of duty and maltreatment of prisoners dating back to November 2003. Sgt. Michael Smith, similarly, was found guilty [opinion, PDF; JURIST report] of conspiracy to maltreat prisoners, dereliction of duty and indecent acts. Photos of Abu Ghraib prison guards smiling over al-Jamadi's body emerged after al-Jamadi's death and led to the conviction of Graner [JURIST report] for abusing detainees. A US Navy SEAL was court-martialed [JURIST report] in March 2005 in connection with al-Jamadi's death, but was later acquitted. Mark Swanner, the CIA officer identified as having conducted al-Jamadi's interrogation, has not been prosecuted in connection with his death and has denied any wrongdoing.




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Oklahoma high court upholds most of state immigration law
Zach Zagger on June 15, 2011 9:13 AM ET

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[JURIST] The Oklahoma Supreme Court [official website] Tuesday upheld [opinion] a state immigration law [HB 1804 text, PDF] as constitutional except for a section denying bail to illegal immigrants charged with crimes. The court ruled 8-1 that HB 1804's denial of bail to illegal immigrants charged with felonies or for driving under the influence was unconstitutional because it infringed on the authority of the trial judge. One judge dissented arguing that HB 1804 was entirely constitutional. What was validated [The Oklahoman report] were provisions authorizing law enforcement to use concurrent authority with the federal government to control illegal immigration, to prevent illegal immigrants from receiving drivers' licenses or state-issued ID cards, making illegal immigrants inelligible for state assistance, and requiring employers to check the immigration status of its employees. The challenge was brought [JURIST report] by Michael Thomas who argued that HB 1804 unconstitutionally delegates authority to the federal government and unconstitutionally appropriates money for the establishment of a department of immigration. But the court concluded that HB 1804 merely cooperates with federal authority and that HB 1804 does not attempt to regulate who may come into the country, but uses the federal government's database to confirm immigration status.

The challenge focused solely on issues of state law as the federal courts have already enjoined portions of the bill from taking effect. Last year, the US Court of Appeals for the Tenth Circuit [official website] affirmed a preliminary injunction [JURIST report] of HB 1804, but did permit the state to enact a provision whereby businesses would have to check their employment roster against a state list of eligible workers through a pilot program. A district court judge had originally issued the injunction [JURIST report] blocking enforcement in 2008 concluding that it was "substantially likely" that the provisions are preempted by federal immigration law, and that there was a risk of harm to the plaintiffs if the challenged provisions were to come into effect on July 1, 2008. Last month, the US Supreme Court [official website; JURIST news archive] ruled in Chamber of Commerce v. Whiting [Cornell LII backgrounder] to uphold an Arizona immigration [JURIST report] law that imposes penalties on businesses that hire illegal immigrants. There are currently federal court challenges over preemption of other immigration bills passed by Arizona and Georgia [JURIST reports].




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Federal judge refuses to vacate California same-sex marriage ruling
Julia Zebley on June 15, 2011 9:09 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Tuesday rejected [opinion, PDF] a motion [text; JURIST report] by Proposition 8 [text; JURIST news archive] supporters to vacate Judge Vaughn Walker's holding that the same-sex marriage ban is unconstitutional [JURIST report]. Proposition 8 supporters had sought to have Walker recused for a conflict of interest after he revealed that he has been in a same-sex relationship for more than 10 years. In his ruling Tuesday, Chief District Judge James Ware denounced using sex, sexuality or race as grounds for recusal:
In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4). In applying this conclusion to the present case, the Court finds that Judge Walker was not required to recuse himself under Section 455(b)(4) on the ground that he was engaged in a long-term same-sex relationship and, thus, could reap speculative benefit from an injunction halting enforcement of Proposition 8 in California. In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal. Requiring recusal because a court issued an injunction that could provide some speculative future benefit to the presiding judge solely on the basis of the fact that the judge belongs to the class against whom the unconstitutional law was directed would lead to a Section 455(b)(4) standard that required recusal of minority judges in most, if not all, civil rights cases. Congress could not have intended such an unworkable recusal statute.
Also Tuesday, Ware set an August 29 hearing [order, PDF] to determine whether video of the Proposition 8 trial can be released for public broadcast.

The fate of Proposition 8 is still lingering in appeals courts. In March, the US Court of Appeals for the Ninth Circuit denied a motion [JURIST report] filed by California Attorney General Kamala Harris [official website] to lift the stay order [JURIST report] prohibiting gay couples from marrying while the appeal is pending. In February, the Supreme Court of California [official website] announced that it would decide a critical procedural issue [JURIST report] to determine if the pending federal appeal can continue. When Walker struck down Proposition 8 last year, 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. It is unclear whether they have standing to do so.




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California bankruptcy court rejects federal same-sex marriage ban
Maureen Cosgrove on June 15, 2011 8:50 AM ET

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[JURIST] The US Bankruptcy Court for the Central District of California [official website] on Monday ruled [opinion, PDF] that the Defense of Marriage Act (DOMA) [text; JURIST news archive], a federal law barring same-sex marriage [JURIST news archive], is unconstitutional. A legally married same-sex couple filed a joint petition under Chapter 13 of the Bankruptcy Code [11 USC § 1301 text] pursuant to § 302(a) which permits the filing of a joint petition by any eligible individual "and such individual debtor's spouse." DOMA defines "spouse" for purposes of federal law as "a person of the opposite sex who is a husband or a wife." The US Trustees [official website] moved to dismiss the petition, arguing that the two males were ineligible to file the petition jointly. The couple challenged DOMA on due process and equal protection grounds as established under the Fifth Amendment [text]. The court used a "heightened scrutiny" standard to invalidate the federal statute, but also indicated that DOMA fails rational basis review:
[T]his court concludes that DOMA is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men. Further, nothing about the Debtors' gender affects their fitness for bankruptcy protection available to opposite-sex marital partners. Spouses should be treated equally, whether of the opposite-sex variety or the same-sex variety, under heightened scrutiny and the principles announced by the Supreme Court and other lower court rulings discussed above.
Twenty bankruptcy judges from the central district of California signed the opinion holding that "no legally married couple should be entitled to fewer bankruptcy rights than any other legally married couple."

Congressional Democrats introduced [JURIST report] legislation [text] in March to repeal DOMA after House Speaker John Boehner (R-OH) [official website] announced [JURIST report] that he is launching a legal advisory group to defend [press release] DOMA. Boehner's proposal came in response to a US Department of Justice (DOJ) [official website] declaration [JURIST report] that it would no longer defend the constitutionality [press release] of Section 3 of DOMA, which defines marriage for federal purposes as a legal union between one man and one woman, in court cases challenging the provision. Attorney General Eric Holder [official profile] acknowledged that the announcement marks a change in policy for the DOJ and the Obama administration, but noted that the change was necessary due to cases pending in the US Court of Appeals for the Second Circuit. Holder explained that when the DOJ previously defended DOMA it had done so in jurisdictions with binding precedent stating that a permissive standard of review was applicable to laws dealing with sexual orientation. 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 under the Fifth Amendment and State Sovereignty under the Tenth Amendment [text].




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Moscow court acquits Russia rights activist of slander charges
Zach Zagger on June 14, 2011 3:13 PM ET

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[JURIST] A court in Moscow acquitted human rights activist Oleg Orlov [JURIST news archive] of a libel suit brought by Chechen President Ramzan Kadyrov [BBC profile] over an allegation that he was responsible for the killing of a Chechen rights activist. The court found that the allegations were hypothetical [Guardian report] and thus, did not constitute libel. Kadryov brought the charges against Orlov, leader of the Memorial [advocacy website, in Russian] human rights group, after Memorial accused [press release, in Russian] Kadryov of being responsible for the murder of Chechen rights activist Natalia Estemirova [BBC obituary]. She was kidnapped and shot to death [JURIST report] in July 2009. Estemirova was Memorial's representative in Chechnya, and the group has also accused Kadryov of extrajudicial killings, kidnappings, torture and other crimes. Orlov said the decision showed law had won out over politics. He had maintained that the charges were politically motivated. He was facing a potential maximum sentence of three years in prison.

Orlov has been critical of the Russian government. In February 2010, he was arrested along with as many as 100 anti-Kremlin demonstrators [JURIST report] as they protested against the perceived government curtailing of the right to peaceful assembly. The 300-strong group chanted slogans calling for Prime Minister Vladimir Putin [official website, in Russian; JURIST news archive] to step aside. Kadryov filed the libel charges [JURIST report] against Orlov in October 2009 after Orlov had already lost a civil suit brought by Kadyrov resulting in USD $2,300 in fines and an order to remove his accusation from Memorial's website. The charges came less than a week after Orlov won the prestigious Sakharov Award from the European Union [official websites] for his work with Memorial.




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