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Legal news from Friday, April 13, 2012




Ninth Circuit strikes down ban on political ads on public television
Jerry Votava on April 13, 2012 3:30 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday struck down [text. PDF] parts of a federal statute that prohibit public broadcasters from transmitting public issue and political advertisements. The suit was brought by the Minority Television Project on behalf of its public television station KMTP [official website] against the Federal Communications Commission (FCC) [official website] after the FCC fined KMTP $10,000 for broadcasting paid promotional messages from for-profit companies. KMTP claimed that the ban and resulting fine impaired their First Amendment right to free speech [Cornell LII backgrounder]. The FCC alleged that KMTP violated 47 USC § 399b [text], which bars public broadcasters from transmitting messages for compensation for (1) for-profit entities, (2) the expression of personal views, and (3) political messages supporting candidates. The trial court upheld all of the prohibitions. In this opinion, the Ninth Circuit upheld the provision prohibiting for-profit messages, but held the other provisions to be unconstitutional. They said:
The government's evidence in this case shows only the size and effect of one class of advertising: traditional commercial advertising. ... But the government cannot point to evidence that its fear of harm to public television that would come from allowing stations to air public issue and political advertisements is "real, not merely conjectural," much less that the portions of the statute which ban such political and public issue advertisements "alleviate those harms in a direct and material way."
In reaction to the ruling, some commentators noted that this may fundamentally change public broadcasting [Reuters report] and cause broadcasters to abandon educational and public interest program in favor of content with broader appeal to attract advertisers.

This ruling is also of particular importance in the wake of the Citizens United v. Federal Election Commission [Cornell LII backgrounder] decision issued by the Supreme Court [official website] in January 2010. In that case, the Court eased restrictions on political campaign spending by corporations. Shortly after Citizens United, in March 2010, the US Court of Appeals for the District of Columbia Circuit [official website] unanimously ruled [JURIST report] that limiting contributions from individuals to independent political advocacy organizations was unconstitutional. These decisions have led to significant increases in political message spending.




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UN counterterrorism official criticizes US court decision on rendition information
Jaimie Cremeans on April 13, 2012 2:04 PM ET

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[JURIST] UN Special Rapporteur on human rights and counterterrorism Ben Emmerson [official profile] on Thursday expressed regret over a US court decision [press release] denying Freedom of Information Act (FOIA) [National Security Archive] requests by a member of the UK parliament and the UK All-Party Parliamentary Group on Extraordinary Rendition [official website]. Earlier this month the US District Court for the District of Columbia granted the US government's motion to dismiss [opinion, PDF] the FOIA challenge based on a provision of the act that exempts US intelligence agencies from disclosing information to foreign government entities. The court noted that, although it is bound to enforce the provision as it is written, the rule could easily be circumvented by someone who is not a representative of such a foreign entity to retrieve the information and then disclose it to the parliament members, since there is no restriction on what a person does with the information once it is retrieved under the act. Regardless, Emmerson stated that the court's decision "flies in the face of the principles of best practice for the oversight of intelligence services." The requests by the UK parliament members were part of an investigation into the US extraordinary rendition program [JURIST news archive], which allegedly allowed the US Central Intelligence Agency (CIA) [official website] to extrajudicially capture foreign terrorism suspects for detention and interrogation. Emmerson supports the UK investigation of the program, arguing that the court's decision was based on a misunderstanding of the UK constitution, in that the All-Party Parliament Group is a separate entity from the UK government, and as such its FOIA requests should have been granted.

Last month Amnesty International (AI) [advocacy website] urged all EU member states to reconsider involvement in the CIA extraordinary rendition program. In 2010 the American Civil Liberties Union [advocacy website] appealed to the US Supreme Court [JURIST report] a lawsuit challenging the extraordinary rendition program. The suit alleged unlawful rendition and torture of terror suspects, but had been dismissed by the US Court of Appeals for the Ninth Circuit based on a claim by the US Department of Justice [official website] that discovery in the case would violate the state secrets privilege [JURIST news archive]. Also in 2010, WikiLeaks [advocacy website] released a document showing that the Bush administration strongly urged Germany to not prosecute CIA officials [JURIST report] involved in the arrest and torture of a German citizen. The documents revealed that US officials were to carefully consider how prosecution of the officials would affect relations with the US, although US officials maintained they did not threaten Germany. Earlier that year the US Supreme Court denied certiorari [JURIST report] to a Canadian citizen seeking to overturn a lower court ruling that denied him the right to sue the US government under the Torture Victim Protection Act [text].




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Pakistan lawmakers seek end to CIA drone strikes
Matthew Pomy on April 13, 2012 1:40 PM ET

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[JURIST] The Pakistani Parliament on Thursday approved recommendations [text] for redefining the government's relationship with the US and NATO, including calling for an end to CIA drone strikes. The new plan comes in response [Pakistan Today report] to the incidental drone strike that killed 24 Pakistani soldiers in November. The 14-point resolution covers everything from Pakistan's nuclear program to the fee charged to NATO forces for shipping non-lethal supplies through Pakistan. The plan calls on the US to review its use of drone strikes and the rules of engagement of US troops in Pakistan:
This means (i) the cessation of drone attacks inside the territorial borders of Pakistan, (ii) no hot pursuit or boots on Pakistani territory and (iii) the activity of foreign private security contractors must be transparent and subject to Pakistani law. lt needs to be realized that drone attacks are counter productive, cause loss of valuable lives and property, radicalize the local population, create support for terrorists and fuel anti American sentiments.
Pakistani officials view drone strikes as a violation of national sovereignty and Pakistan has closed the Afghan border to NATO since the attacks in November.

The debate about drone strikes in Pakistan is highly contentious. Some argue for the importance of Pakistani consent and others focus on the dangerous precedent such strikes may set [JURIST op-eds]. As recently as last month, the Pakistani government called for the US to halt the unmanned strikes [JURIST report]. Earlier in March, a rights group brought a lawsuit against the UK for its role in the drone strikes [JURIST report]. Last July, Pakistani civilians sought the arrest of an ex-CIA official [JURIST report] in relation to the use of drone strikes. The US Department of State's [official website] legal advisor has been an avid defender of the strikes since March 2010 [JURIST report].




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Arizona governor signs bill to ban abortions after 20 weeks
Jerry Votava on April 13, 2012 1:18 PM ET

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[JURIST] Arizona Governor Jan Brewer [official website] signed [press release] a bill [HB 2036 materials] on Friday that bans abortions [JURIST news archive] after 20 weeks into a pregnancy unless there is a medical emergency. The bill imposes other restrictions such as requiring women seeking an abortion to receive an ultrasound 24 hours before an abortion, as opposed to the one-hour requirement which is currently the law in Arizona. The bill also forbids doctors from prescribing abortion pills after the seventh week of pregnancy. In signing the measure, Brewer stated:
This legislation is consistent with my strong track record of supporting common sense measures to protect the health of women and safeguard our most vulnerable population—the unborn. ... Knowing that abortions become riskier the later they are performed in pregnancy, it only makes sense to prohibit these procedures past twenty weeks.
This legislation was passed [JURIST report] by the Arizona House of Representatives [official website] on Tuesday, after it was approved [JURIST report] the Arizona State Senate [official website] last week.

Arizona follows many other states that have recently passed laws restricting abortion. In March, Utah passed a law [JURIST report] requiring a woman seeking an abortion to wait 72 hours prior to obtaining the procedure. Also last month, the Idaho State Senate approved a bill [JURIST report] requiring a woman who is seeking an abortion to first receive an ultrasound. Also, Virginia Governor Bob McDonnell [official website] signed a similar ultrasound bill into law [JURIST report]. Earlier in March, the Georgia House of Representatives passed a ban on abortions after five months into a pregnancy [JURIST report]. In February, the US District Court for the Western District of Texas [official website] ruled [JURIST report] that Texas can enforce a state law requiring women to receive a sonogram before obtaining an abortion. In July, the North Carolina state legislature overrode a governor's veto [JURIST report] to pass a law requiring a 24-hour waiting period for a woman seeking an abortion.




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Egypt parliament passes bill prohibiting Mubarak officials from running for president
Jaimie Cremeans on April 13, 2012 1:13 PM ET

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[JURIST] The Egyptian parliament on Thursday passed a bill preventing those who were high officials under former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] from running for president. The law bars candidacy for 10 years [AP report] for anyone who held a rank of party leader or higher during Mubarak's tenure as president. The law must still be ratified by the country's military council, which has been filling the role of the president since Mubarak left office last year. The bill was the parliament's response to an announcement by Mubarak vice president and spy chief Omar Suleiman [BBC News profile] that he was going to run for president. It remains to be seen whether the law will be ratified before the election commission issues the final list of presidential candidates at the end of this month. The presidential election will take place on May 23 [IFES election guide] and will be Egypt's first presidential election since Mubarak stepped down [JURIST report] in February of last year.

Egypt has been in the process of restructuring its government since protests led to the Mubarak's resignation last year. Earlier this week, an Egyptian court ordered suspension of a constitutional panel [JURIST report], which consisted of about 100 people, charged with writing the country's new constitution. The panel was suspended pursuant to a challenge by Egyptian lawyers that its members were not chosen constitutionally. Egypt is also in the process of trying Mubarak for assisting in the killing of protesters last year. His trial ended last month, and a judge has set the verdict date [JURIST reports] for June 2.




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Netherlands high court rules UN immune from suit
Matthew Pomy on April 13, 2012 12:37 PM ET

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[JURIST] The Supreme Court of the Netherlands [official website, Dutch] ruled [text, Dutch] Friday that the relatives of Bosnian men murdered by Serbian forces in 1995 cannot sue the UN for failing to protect them during the massacres. The ruling essentially held that the UN is immune from prosecution in Dutch courts. The group bringing the lawsuit, known as the Mothers of Srebrenica, are claiming that the UN is liable for their failure to protect civilians during the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. The UN is claiming that it is immune, citing Article 2 Section 2 of the Convention on the Privileges and Immunities of the UN [text, PDF], which says that the UN's property and assets "shall enjoy immunity from every form of legal process except it has expressly waived its immunity." Both the District Court in The Hague and the Supreme Court agreed with the UN, but the Mothers of Srebrenica have said they plan to appeal to the European Court of Human Rights.

Trials in the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] relating to the Serbian genocide continue to develop. Radomir Vukovic's 31-year sentence was upheld in January [JURIST report]. The trial of former commander of the Bosnian Serb Army Ratko Mladic [ICTY case materials; JURIST news archive] continues with him pleading not guilty earlier this month [JURIST report]. Last July, the District Court in The Hague ruled that the Netherlands is liable for the death of three Bosniak men during the Srebrenica massacre [JURIST report].




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Brazil high court legalizes abortion of brain-damaged fetuses
Sung Un Kim on April 13, 2012 10:59 AM ET

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[JURIST] The Brazilian Supreme Court [official website, in Portuguese] on Thursday ruled [press release, in Portuguese] 8-2 to overturn the ban against abortion [JURIST news archive] of brain-damaged (anencephalic fetuses). Currently, Brazil criminalizes abortion with the narrow exceptions of cases in which pregnancy threatens the mother's life and in cases of rape. The court, in deciding to allow abortion [WP report] in such cases, considered the issue of the mother's fundamental right to decide to terminate her pregnancy and concluded that the women's reproductive rights are not subordinate to the interest of general public. It also assessed the fact that anencephalic fetuses have only a slim chance of survival and concluded that such fetuses could not be viewed as a person under the law. Finally, the court sought to address the problem that women undergo abortion through illegal operations, thereby posing health risks to women. The case and the decision were heavily opposed by religious groups that have condemned abortion. Thursday's decision is considered a significant shift for the largest Catholic country that has banned abortion in the past. The same issue was reviewed before Brazil's supreme court first in 2004 in which a judge authorized the abortion of an anencephalic fetus. However, this decision was overturned by the same court three months later.

Abortion is a controversial issue among predominantly Roman Catholic Latin-American countries. In March, the Supreme Court of Argentina [official website, in Spanish] ruled [JURIST report] that rape victims cannot be prosecuted for seeking abortions. In September, Mexico's Supreme Court [official website, in Spanish] upheld [JURIST report] an amendment that stated life begins at conception thereby banning abortion. In 2008, Uruguay's president vetoed a law that was passed [JURIST reports] by the legislature decriminalizing abortion.




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Ukraine court sentences former defense minister for abuse of power
Sung Un Kim on April 13, 2012 10:29 AM ET

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[JURIST] The Pechersky District Court in Kyiv on Thursday sentenced former acting defense minister Valeriy Ivaschenko to five years in prison and banned him from holding public office for three years after convicting him on abuse of power charges. Ivashenko served as acting defense minister under Yulia Tymoshenko [official profile; JURIST news archive] in 2009-10. The verdict was announced [BBC report] upon the court's finding that there was sufficient evidence concerning his alleged involvement in an illegal privatization of a shipbuilding and mechanical plant in the Crimean port of Feodosiya in 2009. His signing of the plan allegedly caused the country to suffer damages in its budget of around $9 million. Ivaschenko's lawyer plans to appeal the decision, denying that his client was involved in any illegal actions. The US embassy in Kyiv [official website] also criticized Thursday's ruling in a brief statement: "we are deeply disappointed in this latest example of selective justice in Ukraine and call for his release, particularly given the state of his health after 18 months in pre-trial detention."

Ivaschenko is one of several members of Tymoshenko's administration to be sentenced for abuse of power. Former interior minister Yuriy Lutsenko and former ecology minister Georgy Filipchuk were both sentenced to four and three years of imprisonment for abuse of office and corruption charges, respectively. Tymoshenko herself was sentenced [JURIST report] in October to seven years in prison on similar charges. Her prosecution has been highly criticized internationally as politically motivated. In March, the European Court of Human Rights (ECHR) [official website] urged [JURIST report] the Ukrainian government to ensure that Tymoshenko is receiving adequate medical treatment. In December, the European Commission expressed its concern [Kyiv Post report] that the Ukrainian hearings in prison do not conform with the European Convention on Human Rights. Additionally, the EU has called [JURIST report] Tymoshenko's conviction "a violation of human rights and an abuse of the judiciary designed to silence Ukraine's leading opposition politician."




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