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Legal news from Wednesday, November 30, 2011 |
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Senate rejects amendment to remove detainee provision in defense spending bill
Jamie Reese on November 30, 2011 2:54 PM ET

[JURIST] The US Senate [official website] voted Tuesday to reject an amendment [S AMDT 1064] to the National Defense Authorization Act for 2012 [SB 1867, PDF] that would have struck a provision authorizing the president to use "all necessary and appropriate force" to detain individuals suspected of terrorism. The amendment, authored by Senator Mark Udall and proposed by Senator Rand Paul [official websites], suggested to institute a timeline to allow further study and investigation on the issue of counterterrorism by Congress. The amendment was rejected by a 67-30 vote [roll call, text], allowing the controversial provision to remain in the act. The provision grants the military complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Opponents of the provision fear it could be applied to US citizens threatening their constitutional liberties. Supporters argue that the idea of an American citizen suspected of aiding al Qaeda [GlobalSecurity backgrounder; JURIST news archive] not getting due process is simply a lie. The entire bill is now under consideration by the Senate. If passed, it will be sent to the White House, which previously released a statement of administration policy [text, PDF] warning that President Barack Obama [official website] could veto the bill [JURIST report] if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House protested that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.
The provision was approved [JURIST report] earlier this month by the Senate Armed Services Committee (SASC) [official website] in a unanimous vote after disagreements regarding the provision had blocked their passage for months [CNN report]. The passage by the SASC came shortly after an American Civil Liberties Union (ACLU) [advocacy website] report [PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling and domestic surveillance and wiretapping. The report posits that certain US policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news archive], but stated that other questionable practices remain "core elements of [US] national security strategy today."


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Facebook and FTC settle privacy dispute
Katherine Getty on November 30, 2011 12:22 PM ET

[JURIST] The Federal Trade Commission [official website] (FTC) and Facebook [website] settled [settlement, PDF] on Tuesday regarding Facebook's practices relating to user privacy. The FTC filed a complaint against Facebook alleging that privacy settings on the site failed to apply to third party sites and applications [complaint, PDF]. Under the settlement agreement Facebook must make users fully aware [press release] of all changes in privacy settings that would override their previously consented to settings. Additionally, Facebook will be subject to third party audits every two years for the next 20 years. Mark Zuckerberg, the founder of Facebook, released a statement [blog post] admitting that Facebook had made mistakes, but promised to do better in the future. Facebook has always been committed to being transparent about the information you have stored with us - and we have led the internet in building tools to give people the ability to see and control what they share. But we can also always do better. I'm committed to making Facebook the leader in transparency and control around privacy. Now that the FTC has proposed the settlement, the public has 30 days to comment on it. After that, the FTC will decide whether to make the proposed settlement final.
In September, members of the Congressional Privacy Caucus [official website] asked the FTC to look into Facebook's privacy settings, including allegations that Facebook continued to track user's activities after they logged out [JURIST report] of the website. This is also not the first time Facebook has been the target of governmental review. In August, the Hamburg Commissioner for Data Protection and Freedom of Information [official website, in German] accused Facebook of violating European data protection laws [JURIST report] through its facial recognition feature that automatically recognizes and "tags" users when others upload photos of them. In December 2010, South Korea alleged that Facebook failed to comply [JURIST report] with privacy laws and expressed concern over the handling of personal information and data. The Canadian Office of the Privacy Commissioner [official website] announced in January 2010 that it was launching a probe [JURIST report] into Facebook's privacy setting as a result of the new feature that allowed people to alter it, but left the default setting very much public.


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Queensland passes civil unions law
Max Slater on November 30, 2011 11:53 AM ET

[JURIST] The Queensland Parliament [official website] passed legislation [text, PDF] on Wednesday to legally recognize civil unions between same-sex couples. Queensland [official website] has joined its fellow Australian states of Tasmania, Victoria and the Australian Capital Territory (ACT) [JURIST reports] in recognizing same-sex unions. The bill passed [transcript, PDF] with 47 MPs voting in favor and 40 voting against it. Speaking in support of the bill on the floor of Parliament, Queensland Premier Anna Bligh [official website] declared:Tonight, the bill that is before the parliament seeks to strike a blow against prejudice and to strike a blow against discrimination. […] [T]hat is what this bill is about: dignity and respect for relationships that are precious in their own right. The arguments we hear from the opposition simply do not hold any weight. The first argument is that somehow this issue is not a priority—that is, that governments should only ever do things that are on the top of the list, that you should never do things that might be important to the minority, that governments should never concern themselves with issues that matter to some people but not everybody. I would argue that the fight against discrimination should be a priority of any government. I make the point that it may not be a priority for every member on the other side and it may not be a priority for every Queenslander, but it is a priority for those people who live with discrimination every single day of their lives. Health Minister Geoff Wilson [official website] expressed his opposition to the legislation on religious grounds, saying that although he supports same-sex rights, his faith prevents him from endorsing civil unions: "I do not believe we should institutionalise and formalise a new type of relationship
outside of marriage for couples, whether they are of the same sex or opposite sex." Two weeks ago, Australian Prime Minister Julia Gillard [official website] called on Australia's Parliament [JURIST report] to vote on whether or not to legalize same-sex marriage nationwide. Parliament has yet to take up the issue.
Australia historically has had a tumultuous past regarding the legal rights of same-sex couples. In May 2008, the Australian government abandoned a proposal [JURIST report] to legally recognize same-sex civil union ceremonies after the Australian federal government threatened to veto Civil Partnerships Bill 2006 [legislative materials] if it passed the Legislative Assembly [official website]. ACT Attorney General Simon Corbell said that the self-governing territory will now move to legalize civil partnerships without ceremony so that same-sex couples can have access to Commonwealth pensions, tax and social security benefits. The Civil Partnerships Bill was introduced after an earlier civil unions law [legislative materials] was actually overturned by the federal government [JURIST report] because that law's attempt to equate civil unions with marriage was determined to be unacceptable. In April of 2008, the Australian government introduced legislation to amend over 100 federal laws [JURIST report] to remove discrimination against same-sex couples but continued to bar same-sex marriage.


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Lebanon contributes money necessary to fund UN tribunal
Ashley Hileman on November 30, 2011 11:32 AM ET

[JURIST] Lebanese Prime Minister Najib Mikati on Wednesday announced that the country has made the payment required to help fund the UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive], which has been tasked with investigating the assassination of a Lebanese statesman. According to Mikati, Lebanon transferred the $36 million [AP report] it was required to contribute in an effort to demonstrate the country's commitment to "international obligations and the principles of justice." The tribunal has been attempting to investigate and hold accountable those involved in the killing of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive], who died as the result of a suicide bomb which also killed 22 others. This investigation has been controversial in Lebanon, especially with regards to the question of the appropriate level of involvement and cooperation that is warranted from Lebanese officials. Since the initiation of the investigation, the court has indicted four members of the Hezbollah group, which maintains that it was not involved in the bombing.
On Monday, the president of the tribunal, Judge David Baragwanath [official website], issued a statement defending his program [JURIST report] following a visit to Lebanon. Tribunal Vice President Judge Ralph Riachi [official website] accompanied Baragwanath on the visit, where they saw a spirit of compliance that made them optimistic about their chances for success. The Tribunal is composed of professional judges selected internationally and includes senior members of the Lebanese judiciary. Baragwanath promised to conclude their job "as swiftly as fairness allows." The STL has faced great difficulty [JURIST report] trying to arrest the members of Hezbollah in Lebanon where the Shiite militia Hezbollah, backed by Iran, is the country's most powerful political force. If the trial commences, this would be the first trial in absentia at an international court since the prosecution of Nazis during the Nuremberg trials.


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Challenge to New York same-sex marriage act allowed to proceed
Jamie Davis on November 30, 2011 10:07 AM ET

[JURIST] A judge for the New York Supreme Court for Livingston County [official website] has ruled [order, PDF] that a constitutional challenge to the state law legalizing same-sex marriage may proceed. Judge Robert Wiggins refused to dismiss the lawsuit [JURIST report] filed in July by New Yorkers for Constitutional Freedoms [advocacy website, press release, PDF] on the theory that there is a justiciable issue as to whether Governor Andrew Cuomo [official website] committed a procedural violation in passing New York's Marriage Equality Act [text, PDF] earlier this year. By invoking a rule in which the governor may certify facts necessitating an immediate vote on the bill, Cuomo circumvented the state constitution's requirement that any bill be printed and on the desks of legislators for three days before any vote. The State Attorney General's Office [official website] filed briefs in an effort to dismiss the suit, but the judge held there were not sufficient facts before the court to determine the legitimacy of the plaintiffs' allegation that Cuomo's private meeting with Republican members of the Senate, in which he urged them to "break the party's position and vote for the bill" prior to its passage, constituted a violation of the state's Open Meetings Law [text]. Wiggins also criticized Cuomo for certifying in the first place that the bill needed to be voted on immediately, calling the cite by the governor "disingenuous" but noting that the court "is reluctantly obliged to rule that the message of necessity submitted by the Governor was accepted by vote of the Senate, and is NOT within this Court's province to nullify." To avoid the 72-hour rule, Cuomo cited the need to immediately remedy the denial of more than 50,000 same-sex couples the "critical protections of different-sex couples, including hospital visitation, inheritance and pension benefits." In his decision, Wiggins emphasized that the court was not expressing any opinion on same-sex marriage, but was only considering issues concerning the procedures the New York Legislature followed when passing the Marriage Equality Act.
Cuomo signed legislation allowing same-sex couples to marry [JURIST report] in the state on June 24. The New York State Senate [official website] had passed the Marriage Equality Act 33-29 earlier that same 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, and the law went into effect on July 25. Shortly after the bill's passage William Duncan, Director of the Marriage Law Foundation argued that the legislation sets a bad precedent and is possibly unconstitutional [JURIST comment] due to the very violations of procedural requirements that have allowed the challenge to proceed. 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].


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Chile requests extradition of former US Navy captain for Pinochet-era crimes
Ashley Hileman on November 30, 2011 9:16 AM ET

[JURIST] A Chilean judge on Tuesday issued an indictment against former US Navy Captain Ray Davis, which included a request that he be extradited to Chile. The indictment charges [CNN report] Davis with the homicides of journalist Charles Horman and US university student Frank Teruggi. Both crimes were alleged to have been committed during the 1973-1990 regime of General Augusto Pinochet [BBC obituary; JURIST news archive]. Davis served as a commander of a US military mission in Chile in 1973 when a coup [BBC backgrounder] ensued that resulted in the ousting of former socialist president Salvador Allende [BBC profile] and the seizure of power by Pinochet. It is alleged that Horman and Teruggi, who were being monitored by US agents as part of a secret investigation into the actions of Americans in Chile, were executed after being arrested during the coup. Davis is accused of having had the power to stop the executions, but failing to do so. His whereabouts are currently unknown, and he has previously denied any involvement in the killings. Retired Chilean army Brigadier Pedro Espinoza Bravo has also been charged in the murders.
Last January, a Chilean Supreme Court [official website, in Spanish] judge ordered an investigation [JURIST report] into the death of Allende during the 1973 coup. Since the coup, Allende's death has been ruled a suicide. Allende, a Marxist, was met with opposition after winning the 1970 elections in Chile from those fearing his presidency would support a pro-Soviet communist government. The 1973 coup, backed by the US [JURIST report], was followed by a 17-year military regime led by Pinochet. The investigation into Allende's death is part of a larger probe into the military dictatorship of Pinochet. Prosecutor Beatriz Padrals will investigate 726 cases of alleged human rights abuses allegedly committed during the Pinochet regime. Hundreds of Chilean officials are also under investigation for human rights abuses committed under Pinochet, including the so-called "Caravan of Death" [BBC backgrounder, JURIST news archive] following the coup, the death or disappearance of more than 3,000 people and 28,000 cases of alleged torture. Pinochet died [JURIST report] before ever facing trial for any of the crimes that were committed during his dictatorship.


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Supreme Court hears arguments on Chapter 12 bankruptcy, insider trading
Julia Zebley on November 30, 2011 6:48 AM ET

[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In Hall v. US [transcript, PDF; JURIST report], the justices heard arguments on a conflict between tax law and bankruptcy procedures, regarding the sale of family farms under Chapter 12 of the Bankruptcy Code [text]. The Hall family, after filing bankruptcy for their farm, found a purchaser who paid more than the value of their debt. As a result, they incurred a significant capital gains tax of $29,000, which would typically go to the IRS, but a recent provision [11 USC §§ 1222(a)(2)(A)] to Chapter 12 deems government interests as an unsecured creditor on the Chapter 12 estate, to be wiped away in the bankruptcy. The Halls' attorney argued for this reading of the new provision, as well as referring to the legislative history of the law, which was intended to aid farmers going through bankruptcy by protecting them from the capital gains tax. The Solicitor General argued that the tax was a post-bankruptcy gain and thus not affected by the Chapter 12 statute, as well as being a debt created by the debtor, rather than the estate in bankruptcy. Justice Elena Kagan commented on the dichotomy between Congess' intent to help farmers and the IRS proposed theory of what the law means: "But there's every reason to think, Mr. Shah, that what Congress was worried about here was cases in which the bankruptcy plan would not be approved at all because there were very high capital gains taxes that would result from a sale; and that that was the problem that everybody was focused on, was making sure that farmers could take advantage of section 12. So it's a little bit odd—it's actually more than a little bit odd. It's a lot odd to read the statutes to apply not in that context, but only as to people who have somehow managed to sell their property, you know, 18 months before going into bankruptcy."
In Credit Suisse Securities LLC v. Simmonds [transcript, PDF; JURIST report], the justices considered when the statute of limitations for reporting insider trading begins. The Securities Exchange Act of 1934 [§ 16(b)] states that the statute of limitations begins "more than two years after the date such [profits from insider trading] was realized." Attorney for Vanessa Simmonds, who filed 54 complaints against Credit Suisse, which were rejected on varying grounds including statute of limitations, argued that the statute of limitations can be tolled to include the discovery of the trading or even the filing of a report about the illegal action. This view was endorsed by the Ninth Circuit's ruling [text] that led to the Supreme Court. Petitioners argued for a strict interpretation of the law where the statute of limitations runs firmly from the date of the alleged misconduct. The Solicitor General interceded to argue a third option, that it tolls when a reasonable person should have known about the incident. Chief Justice John Roberts did not participate in the hearing of this case.


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