Appellee/cross-appellant's motion to lift this court's November 1, 2010, order granting a stay of the district court's judgment pending appeal is granted. In their briefs, appellants/cross-appellees do not contend that 10 USC § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 USC § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.
Neither of the original parties to the suit, the Obama administration nor the Log Cabin Republicans [advocacy website], have commented on the decision.
In May, the US House of Representatives passed the $690 billion National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials], which contains a provision [Sec. 533] that would delay the repeal of DADT [JURIST report]. The repeal had reportedly been on track [JURIST report] to be completed by midsummer. The provision would require the chiefs of each military branch to provide written certification that the repeal of DADT be harmful to the "readiness, effectiveness, cohesion, and morale" of armed forces units. The Don't Ask, Don't Tell Repeal Act of 2010 was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.
[JURIST] An appeals court on Wednesday rejected convicted former Illinois governor George Ryan's appeal seeking to overturn his 2006 conviction on corruption charges. The 77-year-old Ryan was convicted [JURIST report] in 2006 on multiple counts of corruption and fraud [indictment, PDF] in connection with a bribes-for-licenses scandal that occurred during Ryan's term as Illinois Secretary of State. Ryan appealed his conviction after the US Supreme Court [official website; JURIST news archive] decision in Skilling v. United States [Cornell LII backgrounder; JURIST report ] that the "honest services" doctrine [18 USC § 1346 text] is not unconstitutionally vague when construed narrowly. Ryan brought a collateral attack arguing that he was convicted under pre-Skilling jury instructions, and under this new "honest services" precedent, he should be released from prison and his convictions for mail fraud and for violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] should be thrown out. But Judge Frank Hoover Easterbrook held, "there is no doubt that a properly instructed jury could have deemed the payments bribes or kickbacks; the inference that they were verges on the inescapable. The district court's opinion canvasses the evidence and demonstrates why a reasonable jury could find that Ryan sold his offices to the high bidders." Last year, District Judge Rebecca Pallmeyer rejected Ryan's appeal holding that the different instructions were harmless error.
Illinois has two convicted former governors as Rod Blagojevich [personal website; JURIST news archive] was convicted [JURIST report] on 17 of 20 counts including attempting to sell or trade the US Senate seat vacated by President Barack Obama. Blagojevich had also tried to cite Skilling, but a district judge denied a request [JURIST report] to delay the trial. In 2008, Ryan issued his first public apology [JURIST report] for the crimes that resulted in his imprisonment. Ryan was sentenced in 2007 and jailed [JURIST reports] on corruption charges. Ryan's trial began in 2005, and, in 2006, a jury found him guilty [JURIST reports] on multiple counts of corruption and fraud [indictment, PDF] in connection with a bribes-for-licenses scandal that occurred during Ryan's term as Illinois Secretary of State. Ryan made national headlines and won praise in some quarters in January 2003 when, just before leaving office, he commuted the executions [BBC report] of all Illinois inmates then on death row.
[JURIST] Women around the world are still facing discrimination, according to a report [text, PDF; materials] released Wednesday by UN Women [official website] detailing the legal and humanitarian struggles of women across the globe. The report, "Progress of the World's Women: In Pursuit of Justice," is the first out of the UN's new agency, which is devoted to reducing gender inequalities around the world. Part of the report examined how, internationally, the rule of law discriminates against women:
[F]or millions of women and girls, the reality is that the rule of law means little in practice. While law is intended to be a neutral set of rules to govern society, in all countries of the world, laws tend to reflect and reinforce the privilege and the interests of the powerful, whether on the basis of economic class, ethnicity, race, religion or gender. Justice systems also reflect these power imbalances. In all societies, women are less powerful than men and the two areas in which women's rights are least protected, where the rule of law is weakest and men's privilege is often most entrenched, are first, women's rights in the private and domestic sphere, including their rights to live free from violence and to make decisions about their sexuality, on marriage, divorce and reproductive health; and second, women's economic rights, including the right to decent work and the right to inherit and control land and other productive resources. There are challenges at every stage, starting with legal frameworks. In some cases, laws overtly discriminate against women, according them fewer rights than men. Examples of this include laws that limit women's rights within the family, or those that prohibit women from passing on their citizenship to their husband or children, impacting on their civil and political rights, and access to public services. In other cases, the protection of the rule of law is not extended to the private domain where millions of women work and where they are most likely to experience violence.
The report made a number of recommendations for governments to better work toward equality: supporting women's legal associations, implementing gender-sensitive reform, reducing attrition in the justice chain, putting women in more positions of power in law enforcement, training judges in gender sensitivity and monitor their decisions, increasing women's access to judicial processes, implementing gender-responsive reparations programs and using quotas to boost the number of women legislators.
[JURIST] Libyan Judge Khalifa Isa Khalifa announced Wednesday that charges are being filed against 21 rebels attempting to overthrow Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive]. Charges include [AP report] facilitating foreign intervention in Libya [JURIST backgrounder], providing aid and military secrets to the enemy and seeking to topple Gadhafi's regime by force. Among those charged is the head of the rebel group the National Transition Council [official website]. Khalifa plans to try the 21 suspects in absentia in a closed trial before a panel of three judges, and then seek international arrest warrants through Interpol [official website]. He did not comment on whether the recent International Criminal Court (ICC) [official website] arrest warrant [JURIST report] against Gaddafi and two of his high-ranking officials would be honored. If convicted, the rebels will likely receive the death penalty.
Earlier in June, 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 last month that his office was pursuing arrest warrants [JURIST report] against Gaddafi and the two others in his "inner circle." He said 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."
[JURIST] The Obama administration has brought Somali terror suspect Ahmed Abdulkadir Warsame to the US to face a civil trial in New York, a decision that has sparked harsh criticism. Warsame was captured by US forces in April [CNN report] somewhere in the Gulf region and detained on a US Navy ship for questioning until being sent to the US for trial. He made an appearance on Tuesday in the US District Court for the Southern District of New York where he pleaded not guilty to charges of providing material support to a terrorist group and conspiring to teach and demonstrate how to make explosives. The decision to bring Warsame to the US suggests how the Obama administration will handle other terror suspects captured outside Iraq and Afghanistan. The American Civil Liberties Union (ACLU) [advocacy website] lauded the decision but questioned the long detainment overseas. Hina Shamsi of the ACLU released a statement [text]:
We welcome the announcement that the Obama administration will prosecute Warsame in the criminal justice system. Unlike the discredited military commissions, federal courts are able to achieve justice and unquestionably have jurisdiction over the material support and conspiracy crimes with which Warsame is charged. But the Obama administration has put a criminal conviction at risk by holding Warsame in unlawful military detention for over two months. The government could have obtained intelligence through law enforcement rather than military interrogation, as it successfully has in hundreds of terrorism cases, without jeopardizing its criminal case. We are deeply concerned that the Obama administration continues to assert a worldwide war authority wherever terrorism suspects are found, and it is incumbent upon Congress to impose necessary and wise limitations on the administration.
Senate Minority Leader Mitch McConnell (R-KY) [official website] criticized the decision to bring Warsame to the US for trial arguing that terror suspects should be held in Guantanamo Bay. He made a state on the Senate floor Wednesday denouncing the move:
It is truly astonishing that this administrations is determined—determined—to give foreign fighters all the rights and privileges of US citizens, regardless of where they are captured. ... It has become abundantly clear that the administration has no intention of utilizing Guantanamo unless an enemy combatant is already being held there. Instead, the administration has purposefully imported a terrorist into the US and is providing him of all the rights of a US citizen in court. This ideological rigidity being displayed by the administration is harming the national security of the United States of America.
US Attorney General Eric Holder [official website] has consistently advocated [JURIST report] that terror suspects should be tried in civilian courts despite finding little support from Congress. Last month, Holder gave a speech defending the civil court system for terror suspects saying he will, "defend the exclusive right of the executive branch to determine appropriate venues and mechanisms for all criminal trials," and that he will, " continue to point—one indisputable fact ... 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." 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.
In view of the consistent statements that were collected, the team can conclude that at least 387 civilians were raped, including 300 women, 23 men, 55 girls, and 9 boys during the attack on villages along the Kibua-Mpofi axis. It is highly likely that the number of victims is higher, as some victims did not come forward for the reasons given in paragraph 5 of this report. According to local sources, the attacks were a punitive strike intended to subjugate local communities living along the Kibua-Mpofi axis, considered as "traitors" for reportedly sympathizing with Government forces, and aimed at equipping the coalition of armed groups. The armed groups allegedly decided to scare them forever through extremely humiliating acts, hence the planning of mass rapes. According to the statement of a local victim from the Nianga ethnic group, "It is better to die than being raped by FDLR and their allies, because such rape is the worst humiliation against a human being."
MONUSCO declared that the rapes could be war crimes as well as crimes against humanity and recommended further judicial action and more investigation. 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. This has been the only action taken on the issue.
DRC has been struggling with a number of human rights issues. Last month, a military court sentenced four policemen to death for killing prominent human rights activist Floribert Chebeya last year. 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 FDLR 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.
[JURIST] A judge for the US District Court for the District of Idaho [official website] has issued a preliminary injunction [ruling text, PDF] blocking the enforcement of an Idaho anti-union law [SB 1007] that bans a union program that subsidizes employment for its members. The law, called the Fairness in Contracting Act, prohibits union programs used by construction workers unions that pool portions of union wages on a voluntary basis to subsidize union labor to enable union members to be hired at the collectively bargained salary. The plaintiffs, Idaho Building and Construction Trades Council, AFL-CIO and Southwest Idaho Building and Construction Trades Council, AFL-CIO, representing building tradesmen use such a system to keep the cost of using union workers competitive with non-union laborers. Idaho passed the law pursuant to the federal Right to Work Act which Congress has explicitly exempted from the preemption by federal law. But the unions argued that that the Fairness in Contracting Act was beyond the Right to Work Act conflicting with collective bargaining rights and preempted by the National Labor Relations Act. Judge B Lynn Winmill agreed:
Time and time again, the Supreme Court has reiterated that the NLRB should serve as the principal arbiter of labor disputes. Thus the Court sees no justification for a court to abandon consideration of the threshold question, which is whether the matter at issue is peripheral to the concerns of the NLRA or a matter of particular local concern. This would require the Court to discard more than half a century of federal policy that places exclusive jurisdiction over issues of national labor relations in the hands of the agency created by Congress to deal with them. Absent more explicit direction from Congress or the Supreme Court, the Court sees no reason to do so.
The Fairness in Contracting Act was passed with heavy Republican support despite warnings [AP report] from the Idaho Attorney General's office [official website] that it was based on shaky legal ground. It was set to take effect on July 1.
Anti-union fervor has been spreading among state legislatures. Last month, 10 Wisconsin unions filed a lawsuit in the US District Court for the Western District of Wisconsin [official website] challenging the state's new collective bargaining law. The lawsuit 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."
[JURIST] Georgia Attorney General Sam Olens [official website] filed a notice of appeal [press release] in the US District Court for the Northern District of Georgia [official website] on Tuesday, stating that he plans to appeal the recent injunction [JURIST report] of a controversial immigration bill [HB 87 text]. Judge Thomas Thrash issued a preliminary injunction for the plaintiffs—the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [advocacy websites] and other rights groups—last week. 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. Georgia's appeal will be filed within the week in the US Court of Appeals for the Eleventh Circuit [official website].
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].
[JURIST] Syria security forces may have committed crimes against humanity during an operation to suppress demonstrations in the Western town of Tell Kalakh, according to an Amnesty International (AI) [advocacy website] report [text, PDF; press release] published Wednesday. AI said that its investigation revealed that during a security sweep in Tell Kalakh beginning May 14, security forces conducted killings, mass arrests, arbitrary detentions and torture forcing many to flee across the border to Lebanon. AI said it was unable to gain access to Syria but interviewed families who had fled to Lebanon. AI said that every family it interviewed had at least one family member in detention. The report said:
On the basis of this and other research, Amnesty International considers that the Syrian army and security forces committed crimes and other violations during the security operation in Tell Kalakh that, when taken in the context of other crimes and human rights violations elsewhere in Syria, amount to crimes against humanity. This is because they appear to be part of a widespread, as well as systematic, attack against the civilian population involving multiple commission of a range of crimes against a multiplicity of victims in an organized manner and pursuant to a state policy to commit such an attack. These crimes include murder, torture, arbitrary detention and other severe deprivation of liberty, and other inhumane acts committed intentionally to cause great suffering or serious damage to mental or physical health.
Human rights investigators have been shut out of Syria, including a UN commission that published a preliminary report [JURIST report] alleging Syrian security forces have used live ammunition against unarmed civilians, arbitrarily detained protestors, and tortured and killed over 1,000 people. The report also calls for further investigation into violence in Syria.
Earlier this month, UN High Commissioner for Human Rights Navi Pillay [official profile] said that the recent wave of Middle East and North African protests and revolutions showed a basic need for human rights. Pillay pointed to the efforts of the UN Human Rights Council (UNHRC) [official website] in these conflict areas: fact finding missions in Libya, Ivory Coast and Syria [JURIST report] and country offices created in Tunisia and Egypt. 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 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 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. 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 continue. 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.
[JURIST] Russian President Dmitry Medvedev [official profile; JURIST news archive] said that the death of Russian lawyer Sergei Magnitsky in pre-trial was the result of criminal acts, differing from the previous explanation that had blamed prison doctors. Medvedev was presented with a report [AFP report] on Magnitsky's death during a meeting [press release, in Russian] with the Presidential Council on Civil Society and Human Rights that said Magnitsky was beaten to death by prison guards before his death. An investigation into the death had explained the death as a denial of health care. Magnitsky was arrested on allegations of tax fraud after implicating Russian police in a multimillion-dollar embezzlement scandal, while working as outside counsel for the London-based investment fund Hermitage Capital Management [corporate website]. He was held in detention without a trial for over a year before he officials. He died [JURIST report] in a Moscow prison in November 2009. The report says that there were serious conflicts of interest [Reuters report] with the investigation of Magnitsky since the investigators were the same ones against whom he testified in the embezzlement scandal. Magnitsky's pre-trial death is a blow to Medvedev's desire for legal and judicial reform [JURIST report] and Russia's commitment to the rule of law.
Prior to his death, Magnitsky was held in prison for 358 days with little to no access to legal representation, his family or medical professionals. In February, the Council began investigating Magnitsky's death and the verdicts handed down against former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense website]. The Council's goal is to submit to Medvedev, "expert legal analysis in connection with specific cases causing public outcry or defining trend of judicial practice." The Council began its work shortly after a group of independent UN human rights experts started its own investigation into the circumstances around Magnitsky's death. Last year, US lawmakers introduced a bill [JURIST report] that would prohibit the US State Department (DOS) [official website] from issuing visas to individuals, or their family members, who are connected to Magnitsky's death.
[JURIST] The Security Service of Ukraine (SBU) [official website, in Ukrainian] announced on Tuesday that they are launching a criminal investigation [press release, in Ukrainian] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by former prime minister Yulia Tymoshenko [personal website; JURIST news archive]. The SBU is investigating UESU's potential embezzlement of USD $405 million from the government. Although the press release did not mention targeting Tymoshenko's time as head of the company, she stated the probe was another attempt to persecute her based on fake documents [Interfax report]. Her ongoing trial includes charges of abuse of office in connection with signing gas import contracts with Russia, misappropriating state funds and abuse of authority [JURIST reports] by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up during her time as prime minister from 2007-2010. Tymoshenko expressed confidence that a new probe indicates those cases against her have collapsed.
Last month, 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 argued that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival. ECHR President Jean Paul Costa refused to comment on the complaint [Korrespondent report, in Russian], but said it was before the court. 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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