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Legal news from Thursday, September 13, 2012




UN rights expert urges uniform application of international law
Keith Herting on September 13, 2012 4:09 PM ET

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[JURIST] An independent expert on Wednesday urged the UN to become a more "equitable" and "democratic" body in its relationship with individual nations and its application of international law. Speaking before the UN Human Rights Council [official website], the recently appointed UN Independent Expert, Alfred de Zayas [official website], made this request as he unveiled his first report on the "promotion of a democratic and equitable international order" [report, PDF]. In a press release [official statement] issued by the UN, de Zayas identified his vision of what the report hopes to promote:
An international democratic order is one where all peoples have the opportunity to participate in global decision-making. We must build on the principles of self-determination, sovereignty, and respect for national identities and universal human dignity. Progress in democratization at the domestic level is also necessary to ensure a correlation between the true wishes of the people and the governmental measures, including foreign policy, that affect them.
De Zayas will present his findings to the UN General Assembly in October.

De Zayas was appointed by the UN to look for ways to promote equality within the international order [UN News Centre report] in May. The job of his office is to identify systemic inequalities between nations and to propose solutions to achieve the UN's mandate [text]. De Zayas hopes that by "applying international law uniformly and not a la carte, by refraining from the threat or the use of force, by promoting a culture of dialogue" the international order can make progress towards a greater international solidarity.




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US House reauthorizes FISA surveillance law
Brandon Gatto on September 13, 2012 3:34 PM ET

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[JURIST] The US House of Representatives [official website] on Wedneday voted to reauthorize the Foreign Intelligence Surveillance Amendments Act of 2008 (FISA) [text, PDF], a highly contested law designed as a national security protection against terrorism and other foreign threats. The law's Reauthorization Act of 2012 [text, PDF] renews 2008 revisions which call for special government programs, such as the National Security Agency (NSA) [official website] warrantless surveillance program [JURIST news archive], to be operated under court supervision. It also allows the government to collect communications from US companies regarding foreigners abroad so long as the foreigner is overseas. Though the issue of warrantless searches of Americans remains controversial, the House voted 300 to 118 to extend the law for an additional five years. The US Senate [official website], meanwhile, will likely not vote on the bill until after November elections.

FISA has been controversial since its inception in 1978 and remains controversial in post-9/11 America. In February, arguments were made that the law too heavily favors the government by creating an impossible evidentiary burden for defendants, and that Congress may have chosen to protect national security interests [JURIST op-eds] over those of criminal defendants without considering the constitution. Most recently, the US Court of Appeals for the Ninth Circuit [official website] unanimously declared the law constitutional [JURIST report]. The House amendments to FISA in 2008 originally granted retroactive immunity [JURIST report] to telecommunications companies that participated in the NSA warrantless surveillance program.




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Sixth Circuit dismisses posthumous citizenship request for convicted Nazi guard
Keith Herting on September 13, 2012 2:55 PM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Wednesday refused to reconsider a decision to deny a posthumous appeal [JURIST report] to restore the citizenship of convicted Nazi guard John Demjanjuk [JURIST news archive]. Demjanjuk, a retired Ohio autoworker convicted of being an accessory to over 28,000 murders as a guard at a Nazi extermination camp, passed away in March [JURIST report] leaving his wife to assume the role of petitioner in his appeal. The appeals panel let stand the June decision [opinion, PDF] which found that following Demjanjuk's death there was no longer any effective remedy the court could issue.

Demjanjuk was convicted in a German Court [JURIST report] in May 2011 and sentenced to five years in prison, but he was released to a nursing home due to his age and deteriorating health. In May 2010, a German judge denied a motion to dismiss [JURIST report] the charges due to lack of evidence. He was found fit to stand trial [JURIST report] in that court in October 2009 against allegations by Demjanjuk and his family that he was too old and sick to go through a trial. He was deported to Germany [JURIST report] from the S in May 2009 after the US Supreme Court refused to hear his appeal of a 2005 deportation order [JURST reports] by a US Chief Immigration Judge.




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UN rights chief condemns 16 nations for activist reprisals
Brandon Gatto on September 13, 2012 2:51 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Thursday told a special session [materials] of the Human Rights Council [official website] that 16 nations have failed to prevent members of their own governments from intimidating and attacking activists and protesters. Based on a UN report not yet released to the public, she noted [AP report] that such harassment has taken the form of public statements and smear campaigns as well as physical threats, arrests, beatings, torture and even killing. Moreover, Pillay emphasized that some of the attacks occurred shortly after last year's Arab Spring [BBC backgrounder], and that most of the government officials responsible for the acts are not being held accountable for their reprisals. The report details June 2011 to July 2012 with special attention to Algeria, Bahrain, Belarus, China, Colombia, Iran, Kazakhstan, Kenya, Lebanon, Malawi, Rwanda, Saudi Arabia, Sri Lanka, Sudan, Uzbekistan and Venezuela. In her opening statement to the council [text] on Monday, she declared that, "[u]nless halted and sanctioned, reprisals undermine the ability of civil society and other actors to engage with the UN to promote human rights." She then reiterated a call for "all States to assume their responsibility to provide protection for those who advocate for human rights."

Also in her opening statement on Monday, Pillay addressed several other significant humans right issues [JURIST report] around the world. In addition to criticizing Bahrain for its treatment of opposition figures [JURIST report], she also condemned the country for its failure to use fair trial practices. In relation to western countries, Pillay also criticized France's eviction of the Romanian Roma minority from their camps and Greece's recent xenophobic attacks against migrants [JURIST reports].




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US House panel questions China organ transplants from executed inmates
Rebecca DiLeonardo on September 13, 2012 12:37 PM ET

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[JURIST] The US House Committee on Foreign Affairs [official website] on Wednesday held a hearing [materials] to discuss the Chinese government's practice of harvesting organs from executed inmates. The hearing included testimony by three witnesses supporting allegations that the government has deliberately executed political prisoners for the purpose of transplanting their organs. Representative Chris Smith [official website] said during the hearing that if the allegations were true, the Chinese government is guilty of serious human rights violations. A prepared statement [text, PDF] by witness Dr. Damon Noto noted that there is a correlation between Chinese persecution of political dissidents and dramatic increases in organ transplants. He urged the committee to adopt a resolution condemning the Chinese government and to encourage the US government to launch a further investigation into the matter. The Chinese government said in March that it would work to end organ donations from executed prisoners [JURIST report] in the next five years. While the government acknowledges that the organ donation takes place, it denies that organ transplants are a determining factor in executions.

In 2009, it was reported that 65 percent of China's organ donations [JURIST report] came from executed prisoners. China pledged in 2007 at a World Medical Association [profession website] meeting to end the practice [JURIST report] of harvesting prisoners' organs, except for donations to relatives. This decision came after criticism by the British Transplantation Society [advocacy website], which accused China [JURIST report] of selling organs harvested from executed prisoners. China denied these and other allegations [JURIST report], saying that all donors must give consent before their organs are used.




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Cambodia genocide tribunal rules Khmer Rouge leader unfit to stand trial
Max Slater on September 13, 2012 11:23 AM ET

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[JURIST] The trial chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] ruled [press release] Thursday that the sister-in-law of former Khmer Rouge leader Pol Pot [BBC backgrounders] is not mentally competent to stand trial, ordering her release. The tribunal held that Ieng Thirith [ECCC profile], the so-called "First Lady" of the Khmer Rouge, is mentally incompetent to face trial after court-appointed medical experts testified that she is probably suffering from Alzheimer's disease:
[T]he Trial Chamber has today reaffirmed its prior finding that the Accused Ieng Thirirth suffers from a progressive, degenerative illness (likely Alzheimer's disease) and that she remains unfit to stand trial. The experts have confirmed that all treatment options have now been exhausted and that the Accused's cognitive impairment is likely irreversible. As there is no prospect that the Accused can be tried in the foreseeable future, the Trial Chamber has confirmed the severance of the charges against the Accused Ieng Thirith...and indefinitely stayed proceedings against her.
Ieng Thirith has denied responsibility for any crimes committed by the Khmer Rouge during its four-year reign in the 1970s.

Last week, the ECCC announced [JURIST report] that it would declassify more than 1,700 war crimes documents. The ECCC has only convicted one former Khmer Rouge leader, Kaing Guek Eav [case materials; JURIST news archive]. Ieng Thirith was indicted [JURIST report] in September 2010 along with Ieng Sary, Khieu Samphan and Nuon Chea. The ECCC ruled in November that Ieng Thirith was unfit to stand trial [JURIST report], but the Supreme Court Chamber ordered that she remain in detention [JURIST reports] and that the Trial Chamber exhaust all measures so that she can stand trial. The other three went on trial [JURIST report] in November. In July the ECCC appointed a new judge to prosecute two new war crimes cases [JURIST report].




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Federal judge blocks indefinite detention law
Maureen Cosgrove on September 13, 2012 9:13 AM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday permanently enjoined [opinion, PDF] a US law that allows authorities to detain certain suspects indefinitely if they are found to have aided al Qaeda, the Taliban or "associated forces." Section 1021(b)(2) of the National Defense Authorization Act (NDAA) [text, PDF] affirms the authority of the president under the Authorization for Use of Military Force (AUMF) to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." A group of seven individuals and one organization challenged the law claiming it would stifle journalists' free speech and association rights. The government countered that the section is merely an affirmation of the AUMF and that the executive is afforded latitude in instances of national security. Judge Katherine Forrest blocked the enforcement of Section 1021 against all persons, saying the provision is "unconstitutionally overbroad" in that it "purports to encompass protected First Amendment activities." Furthermore, the government's failure to define vague and ambiguous terms of the provision constitutes a violation of the Fifth Amendment. Finally, the court noted that although the judicial branch must give due deference to the executive and legislative branches, the constitutional question raised by the executive branch's enforcement of the provision implicates the court's responsibility to address the issue.

Forrest issued an injunction against the law in May, and clarified in the following weeks that her injunction should be interpreted broadly [JURIST reports]. Lawyers for the government filed their appeal [JURIST report] with the US Court of Appeals for the Second Circuit [official website] in August. US President Barack Obama signed the NDAA into law [JURIST report] on December 31, 2011. Upon signing, he noted [statement], "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." Both houses of Congress reached an agreement [JURIST report] on the language of the NDAA's most controversial sections in mid-December.




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Missouri legislature overrides birth control bill veto
Maureen Cosgrove on September 13, 2012 8:26 AM ET

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[JURIST] The Missouri Senate and House of Representatives [official websites] on Wednesday voted to override a veto Governor Jay Nixon [official website] of a bill [SB 749 materials] that prohibits mandatory insurance coverage of birth control for anyone with ethical or religious objections. The Senate voted 26-6 to override the veto, while the House narrowly secured the required endorsements [press release], voting 109-45. Representative Sandy Crawford [official profile] supported the override [statement, audio], saying the bill "protects religious liberties and prohibits businesses from being forced to provide abortions." Representative Linda Black [official profile] said the bill will not prevent abortions [statement, audio] because limiting access to contraceptives will increase abortions. Nixon vetoed the bill [JURIST report] in July, stating he supports laws that afford employers strong religious protections, but opposing SB 749 because it gives insurance companies the ability to override the religious and moral beliefs of employers and employees. The legislation will immediately take effect as law.

This is the latest development in the ongoing reproductive rights controversy [JURIST backgrounder]. Earlier this week the US Court of Appeals for the Ninth Circuit [official website] narrowed the scope on a preliminary injunction [JURIST report] against a 1972 Idaho law that makes it a felony to end one's own pregnancy. Last month, the US Court of Appeals for the Fifth Circuit [official website] upheld [JURIST report] Louisiana's Act 490, which allows the Department of Health and Hospitals (DHH) [official website] to revoke an abortion clinic's license immediately after a regulation violation, rather than allowing the abortion clinic time to comply with the regulation. In May Kansas Governor Sam Brownback signed a bill allowing pharmacists to refuse to dispense drugs [JURIST report] that they "reasonably believe" might result in the termination of a pregnancy. JURIST Guest Columnist Chad Flanders [official profile] argues that resolution of the philosophical issues underlying the controversy is unlikely and that we should seek a pragmatic solution [JURIST op-ed] to the problem.




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Military judge denies motion to allow television broadcast of Guantanamo trial
Jaimie Cremeans on September 13, 2012 7:47 AM ET

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[JURIST] A military judge ruled [order, PDF] Monday that he lacks authority to allow media to broadcast the trial of accused USS Cole [Navy backgrounder] bomber Abd al-Rahim Nashiri [NYT profile; JURIST news archive]. Al-Nashiri's defense lawyers moved [JURIST report] in July for the trial to be televised because there is a public interest in viewing the trial and seeing potential issues with the judicial process. Military Judge James Pohl, however, said in his order dismissing the defense's motion that Rule of Military Commissions 806(c) [text] expressly forbids "video and audio recording and taking of photographs ... in the courtroom," unless it is "expressly authorized by the Secretary of Defense." He said the rule does not give him or any other judge discretion on the issue, so he does not have authority to allow the trial to be recorded and broadcast. He also said that this does not violate the defendant's Sixth Amendment [text] right to a public trial because reporters are not prohibited from traveling to Guantanamo to watch and report on the trial.

Conducting trials at Guantanamo Bay has stirred controversy recently, as alleged conspirators of both the 9/11 terrorist attacks and the USS Cole bombing are being tried. In February Pohl ruled [JURIST report] in al-Nashiri's case that attorney-client mail that was inspected at Guantanamo Bay can not be released by the Pentagon [official website]. Days before this ruling, defense lawyers in the case of another Guantanamo detainee filed a suit [JURIST report] challenging the order for officials to read all legal correspondence for suspected 9/11 conspirators. That same month, a Pentagon official denied a request [JURIST report] to extend the deadline for filing pre-trial motions for detainees accused of planning the 9/11 attacks. Defense attorneys said they needed more time because of trouble getting security clearance at Guantanamo.




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Russia PM calls for release of feminist activist rock band
Jaimie Cremeans on September 13, 2012 6:32 AM ET

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[JURIST] Russian Prime Minister Dmitry Medvedev [official website, in Russian] called Wednesday for the release of members of the rock band Pussy Riot [RAPSI backgrounder; JURIST news archive], saying that time served has been severe enough and that anymore time in prison would be counterproductive. Medvedev also said, however, that he does not in any way condone [Moscow Times report] the actions of the group. His statements came at a meeting of United Russia, the political party which Medvedev heads. Although the prime minister's words do not control how the courts will decide in the group's upcoming appeal, their lawyer Nicholas Polozov told [transcript, in Russian] the Russian radio station Kommersant FM [media website, in Russian] he thinks Medvedev's opinion will be "crucial" to his clients' case. Pussy Riot's appeal [JURIST report] of their convictions will be heard by the Moscow City Court on October 1.

Last month the Russian Presidential Council on Human Rights [official website, in Russian] also questioned the legitimacy [JURIST report] of the court's verdict and sentence against Pussy Riot. They were convicted [JURIST report] the previous week on charges of "hooliganism" the court said was driven by religious hatred. The trial and conviction came after the group performed a protest song in February outside of Moscow's Christ the Savior Cathedral. Pussy Riot's defense lawyers moved [JURIST report] earlier in August to have one of the judges recuse herself from the case, saying her decisions are politically motivated. Since the beginning of the trial [JURIST report], the group's lawyers and human rights groups have said the charges were politically motivated by President Vladimir Putin [official website; JURIST news archive] to discredit his opposition.




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