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Legal news from Thursday, October 13, 2011




Libya officials urged to stop prisoner abuse
Andrea Bottorff on October 13, 2011 2:46 PM ET

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[JURIST] Libyan forces have arrested nearly 2,500 people who face ongoing torture and detainment without formal charges [briefing paper, PDF], Amnesty International (AI) [advocacy website] alleged Thursday. Interviews of 300 Libyan prisoners in August and September revealed that many were abducted from their homes without arrest warrants, were beaten and tortured in prison to elicit confessions and are still being held with charges, all in violation of domestic and international law. Among other abuses, the briefing alleged that sub-Saharan blacks face heightened abuse and discrimination in the detention facilities, including lack of mattresses, verbal abuse and beatings. AI acknowledged the challenges facing the newly formed government, the National Transitional Council (NTC) [website]:
The NTC faces considerable challenges in its efforts to reform the judicial system and control the numerous armed militias that have largely taken the law into their own hands. In a period of transition, it is imperative that the NTC firmly demonstrate its commitment to turning the page on decades of gross and systematic violations in Libya. It must uphold human rights in Libya and exercise the necessary political will to investigate abuses committed by anti-Gaddafi forces, prosecute those responsible, and ensure that individuals found guilty of abuses are held to account for their actions and removed from positions that would allow them to repeat such abuses.
Trials in the country have been suspended [AI news release] since the NTC took control earlier this year.

The NTC has been gaining recognition among other countries, as well as the World Bank [JURIST report]. Last month, the NTC vowed to investigate allegations of human rights after AI published a report [JURIST report] alleging that both sides of the Libya conflict [JURIST backgrounder] are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. Also last month, the NTC assured world leaders that Libya will be a society of tolerance and respect [JURIST report] for the rule of law. During a meeting [BBC report] in Paris chaired by French President Nicolas Sarkozy, NTC leader Mustafa Abdel Jalil [BBC profiles] vowed to administer elections and draft a new constitution for Libya within 18 months. However, allegations of war crimes and human rights violations have been widespread during the Libya conflict.




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Kazakhstan president signs restrictive law to curb religious extremism
Andrea Bottorff on October 13, 2011 1:33 PM ET

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[JURIST] Kazakhstani President Nursultan Nazarbayev [official website, in Kazakh; BBC profile] on Thursday signed into law a controversial bill dissolving religious organizations and requiring re-registration, drawing criticism from international observers. The bill dissolves current registrations and establishes a procedure requiring groups to meet membership thresholds [AP report]—at least 50 members to register locally, 500 members to register regionally and 5,000 members to register nationally—in order to be able to re-register in the predominantly Muslim country. The law also limits where a person may worship [Telegraph report] and bans prayer rooms from government buildings altogether. Norweigian religious advocacy group Forum 18 [advocacy website] criticized the new law for unnecessarily limiting freedom of religion [statement]. Recently, Kazakhstani lawmakers have been unsettled by religious extremists [VOA report] plotting acts of terrorism across Central Asia's largest economy and hope the new law will help lessen religious militancy. Nazarbayev, who proposed the new measures, signed the law nearly two weeks after the upper house of the Kazakhstani parliament [official website] passed the bill [JURIST report].

Human rights groups have closely scrutinized Kazakhstan's adherence to its international human rights obligations. In April, Nazarbayev discharged six justices [JURIST report] of the Supreme Court of the Republic of Kazakhstan [official website] for corruption. Kazakhstan submitted to a Universal Periodic Review (UPR) by the UN Human Rights Council [official websites] in February 2010. Kazakhstan accepted 121 of the recommendations [Kazakhstan UPR materials] to reduce human rights violation, particularly with respect to freedom of the press. In August 2009, the Supreme Court affirmed the conviction [JURIST report] of publisher Ramazan Esergepov, who was sentenced to three years in jail for revealing state secrets in his newspaper. A representative of Freedom of the Media at the Organization for Security and Co-operation in Europe (OSCE) [official websites] said that revealing public corruption [press release] is "the main duty of the journalists acting in the public interest," and that "[c]riminal sanctions for 'breach of secrecy' should only apply to the officials whose job descriptions stipulate the duty to protect sensitive information, but not to citizens."




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US lawmakers approve trade agreements with Colombia, Panama, South Korea
Dan Taglioli on October 13, 2011 1:27 PM ET

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[JURIST] The US House of Representatives and Senate [official websites] on Wednesday gave final approval to three free trade agreements, marking the first time in several years that the US has formed a trade partnership. The House and Senate voted in rapid succession [AP report] to pass the trade pacts with Colombia, Panama and South Korea, which are predicted by the US International Trade Commission [official website] to boost national exports by approximately $13 billion, about 0.1 percent of GDP [BEA materials]. The agreements will lower or eliminate tariffs that US exporters face in the three countries and take steps to better protect intellectual property and improve access for American investors there. The agreement with South Korea, the world's thirteenth largest economy [CIA World Factbook backgrounder] in 2010 with an estimated GDP of $1.459 trillion, is being hailed as the largest such deal since the North American Free Trade Agreement (NAFTA) [USTR backgrounder] with Mexico and Canada in 1994, which created the world's largest free trade zone. The agreements passed by large margins in both chambers of Congress, despite opposition from labor groups and other critics of free trade agreements who say they result in job losses and ignore labor rights problems in the partner countries. In the House, the votes were 278-151 for South Korea, 300-129 for Panama and 262-167 for Colombia; the Senate votes were 83-15 for Korea, 77-22 for Panama and 66-33 for Colombia. The last free trade agreement completed by the US was with Peru in 2007.

Despite the large margins and bipartisan support, the measures did not pass without debate. Republicans criticized President Barack Obama [official website] for taking several years to send the agreements to Congress for approval, as they were each originally signed during the Bush administration. Many in the president's own party, including organized labor and Democrats from areas hit hard by foreign competition, were critical of the White House for espousing the benefits of free trade, especially with Colombia, which has a reputation for violence against labor leaders and a history of labor leader assassinations. To appease Democrats, the White House demanded that the trade bills be linked to an extension of a Kennedy-era program that helps workers displaced by foreign competition, an extension that passed through Congress successfully with the trade agreements. In a press release the Panama Chamber of Commerce [official website] stated it "believes that implementation of the U.S.-Panama agreement will enhance export and investment opportunities for US companies and will enable American workers to compete in the quickly growing global economy, in which Panama plays a pivotal role as the gateway to the Americas." The first official trade pact between the US and Central America was signed [JURIST report] by then-president George W. Bush in 2005.




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Alleged Iran assassination plot may violate UN treaty protecting diplomats
Michael Haggerson on October 13, 2011 12:46 PM ET

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[JURIST] An alleged Iranian plot to assassinate Adel al-Jubeir [official profile], Saudi Arabia's Ambassador to the US, may violate the UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents [text, PDF; materials], which Iran signed in 1978. The US Department of Justice [official website] announced on Tuesday that it had foiled the plot [press release]. One man, Manssor Arbabsiar, who was working as a used-car salesman in Texas, was arrested and another, Gholam Shakuri, has been charged but is believed to be in Iran. Both men are Iranian nationals. The plot allegedly involved an attempt by the Iranians to hire a Mexican drug cartel [AP report, video] to assassinate the Saudi ambassador using plastic explosives. The Convention makes it illegal to kill or threaten to kill diplomatic ambassadors and requires nations to either prosecute the offenders or extradite them so that charges can be brought against them. However, Iran has denied involvement in the plot and is unlikely to charge or extradite Shakuri. Because of Iran's refusal to charge Shakuri, the situation may escalate to international courts [Reuters report].

Tensions between Saudi Arabia and Iran have existed for decades [CNN backgrounder]. There is both a political and religious divide between the countries, as Saudi Arabia is predominately Sunni and Iran is predominately Shia. The recent Arab Spring has only exacerbated tensions between the countries [CNN Q&A] as Iran, at least initially, supported the revolutions because it saw Tunisia, Egypt and Bahrain as American allies. Saudi Arabia, on the other hand, wished to preserve the status quo in the Arab world. Many commentators suggest that the alleged assassination plot will only further escalate the tension between the countries [TIME report] and strengthen the weakening US-Saudi relationship.




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Rights groups challenge South Carolina immigration law
Dan Taglioli on October 13, 2011 12:17 PM ET

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[JURIST] A coalition of civil rights groups filed a federal lawsuit Wednesday to block South Carolina's recently passed immigration law [SB 20 text]. Brought by the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [advocacy websites] and other civil rights groups, the class action suit [complaint, PDF] claims the new legislation is unconstitutional, inviting racial profiling and interfering with federal law. The immigration law 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 to check the citizenship status of employees and job applicants. Penalties for knowingly employing illegal immigrants include suspension and revocation of a state business license. Victoria Middleton, executive director of the ACLU of South Carolina [advocacy website], criticized the legislation [ACLU press release] as the lawsuit was filed:
By requiring local law enforcement officials to act as immigration agents, this law invites discrimination against anyone who looks or sounds "foreign," including American citizens and legal residents. It will make criminals out of good Samaritans, harm victims of crime and abuse, hamper police in preventing and solving crimes, and create a climate of fear and prejudice in South Carolina.
The five-count complaint seeks declaratory and injunctive relief against SB 20 as an unlawful contravention of federal immigration law under the Supremacy Clause, an infringement of rights against unlawful search and seizure under the Fourth Amendment and an unconstitutional deprivation of individual liberties under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment [Cornell LII backgrounders].

The US District Court for the Northern District of Alabama [official website] denied similar motions for injunction against that state's recently passed immigration law last week and last month [JURIST reports]. In August, the state of Arizona filed a petition for writ of certiorari [JURIST report] with the US Supreme Court [official website] seeking to overturn a lower court decision enjoining four provisions of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive], on which the South Carolina and Alabama legislation is modeled. Several other state legislatures have also 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] 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] considered to be a "watered-down" version of the Arizona bill. Virginia, Oklahoma and Utah [JURIST reports] have all approved Arizona-style immigration bills within the past year.




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Sudan to adopt Islamic constitution
Michael Haggerson on October 13, 2011 12:09 PM ET

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[JURIST] Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] announced Wednesday that Sudan will adopt an Islamic constitution. The creation of an Islamic state, three months after the official split between Sudan and South Sudan [JURIST report], is intended to more accurately reflect the religious affiliation of its population, which is 98 percent Muslim [Reuters reports] now that the mainly Christian South Sudan is recognized as an independent country [JURIST report]. This leaves the future of the more than one million South Sudanese living in Sudan, who have already been given until the spring to leave and are treated as foreigners, even more in doubt.

Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict [BBC backgrounder]. The International Criminal Court (ICC) [official website] charged him with three counts of genocide [JURIST report] in July 2010, but he has yet to be arrested. In June, ICC Chief Prosecutor Luis Moreno Ocampo [official website] issued a statement claiming that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. Also in June, UN High Commissioner for Human Rights Navi Pillay [official profile] criticized China [JURIST report] for welcoming al-Bashir rather than arresting him to stand trial. Amnesty International [advocacy website] also urged China, along with Malaysia [JURIST reports], to arrest the Sudanese president.




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Supreme Court hears arguments on strip searches, deportation
Erin Bock on October 13, 2011 9:24 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Florence v. Board of Chosen Freeholders of County of Burlington [transcript, PDF; JURIST report], the court considered whether a suspect's Fourth Amendment [text] rights were violated when he was strip searched twice after being arrested for a non-criminal offense and the circumstances did not suggest that he was carrying contraband. Petitioner Albert Florence was arrested in New Jersey after being pulled over when it was discovered that there was an outstanding warrant against him for failure to pay a fine, which is considered a non-criminal offense in New Jersey. He produced a letter stating that he had paid the fine, but the officer made the arrest anyway. Florence was transported to a local jail where he was forced to strip naked for inspection. He was transferred to another correctional facility a week later and was again subjected to a strip search. Florence later filed suit under 42 USC § 1983 [text], alleging that his Fourth Amendment rights were violated. The US District Court for the District of New Jersey granted summary judgment for the defendants, but the US Court of Appeals for the Third Circuit reversed [opinion, PDF]. Counsel for Florence argued that the search was illegal because it was not based on reasonable suspicion, but was based on a jail policy that subjected every arrestee to a strip search. Counsel stated that the case was distinct from the situation in Bell v. Wolfish [materials], where the court ruled that the possible innocence of arrestees should not prevent officials from performing searches in order to maintain their facility. Counsel made a distinction between major versus minor offenders, arguing that strip searches are more warranted for offenders who are "inclined to violence," and called any argument finding suspicion that Florence was smuggling contraband "laugh out loud funny." Counsel requested that the jail's blanketed policy be replaced by a case-by-case review. Counsel for the facilities argued that there was no reasonable suspicion requirement in the case because the search was more cursory and not invasive, like a cavity search. Counsel further argued that the classification of the offense should not matter because minor offenders could just as easily as major offenders smuggle contraband into the prison population. Counsel asked that the court give deference to the judgment of prison officials as to what is appropriate.

In Judulang v. Holder [transcript, PDF; JURIST report], the court considered whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable, but did not leave and reenter the US in the time between his conviction and commencement of removal proceedings, may seek a discretionary waiver of the conviction and thereby avoid removal under former section 212(c) of the Immigration and Nationality Act (INA) [text]. Judulang, the son of immigrants from the Philippines, pleaded guilty to voluntary manslaughter in 1989 and later claimed that he could seek a discretionary waiver of deportation under 212(c). The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that Judulang's aggravated felony crime of violence was not a ground for exclusion under the statute. Counsel for Judulang argued that he would have been eligible to apply for such a waiver under section 212(c) prior to the BIA's 2005 decision in Matter of Blake [opinion, PDF], which changed the policy and found no statutory counterpart to 212(c) in the current immigration Act. Counsel argued that the change in policy violated equal protection as well as "considerations of fair notice, reasonable reliance, and settled expectations." Counsel for the government argued that the BIA was consistent in its decision making in this area of the law, citing earlier decisions that were consistent with Blake.




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