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Legal news from Wednesday, November 21, 2012




Bahrain continuing rights abuses despite pledge to reform: AI
Sung Un Kim on November 21, 2012 3:07 PM ET

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[JURIST] Bahrain has failed to meet its obligations and promises to ensure respect for human rights and prevent further torture within the country, Amnesty International (AI) [advocacy website] stated in a 39-page briefing [text, PDF] released on Wednesday. Contrary to the government's commitment to implementing the recommendations set forth [JURIST report] in the report [text, PDF] by the Bahrain Independent Commission of Inquiry (BICI) [official website] a year ago, AI claims the country has become more repressive by banning all gatherings [JURIST report] violating citizens' right of free expression and peaceful assembly. Moreover, AI documented continued abuse of power by security forces against protesters. In response, violence against law enforcement officials increased during the recent weeks resulting in the death of two police officers during a riot. However, AI said that violent protests could not excuse the government's failure to implement measures that ensure human rights. It also argued that BICI's recommendation should guide the government in preventing an escalation of violence and in establishing rule of law within the country.

Bahrain has faced international criticism for its crackdown against dissidents since anti-government protests began last year. Earlier this month the Bahrain government extended [JURIST report] the detention of Sayed Yousif Al-Muhafda [official Twitter], a leading human rights activist. He had been arrested during an unauthorized protest a week before. In October Bahrain appeals court upheld [JURIST report] verdicts against two teachers for organizing a teachers' strike early last year to support anti-government protests. During the same month Human Rights Watch (HRW) [advocacy website] urged Bahrain's court of appeals to overturn [JURIST report] the conviction of human right advocate Nabeel Rajab [JURIST news archive]. In September Bahrain pledged to follow the UN's plan [JURIST report] to improve the country's human rights conditions, but HRW raised doubts as to whether the government is fully committed to reform.




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Federal judge grants summary judgment against 9/11 negligence claim
Sung Un Kim on November 21, 2012 2:27 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday granted [opinion, PDF] a motion by several Airlines for summary judgment in a negligence claim stemming form the 9/11 terrorist attack [JURIST backgrounder] negligence claim. Lessee of 7 World Trade Center (Tower 7), which collapsed from the flaming debris resulting out of the crash of Flight 11 into the 1 World Trade Center, sued several defendants including United Airlines and American Airlines arguing that they were responsible for the collapse of Tower 7. The plaintiff in this case claimed that "United had a legal duty and a clear chance to prevent the hijacking of American Airlines Flight 11 when Atta and his accomplice passed through the Portland security checkpoint for which United has shared responsibility." However, District Judge Alvin Hellerstein, citing Palsgraf v. Long Island R.R. Co., held that United did not owe duty of care to the plaintiff because:
It was not within United's range of apprehension that terrorists would slip through the PWM security screening checkpoint, fly to Logan, proceed through another air carrier's security screening and board that air carrier's flight, hijack the flight and crash it into I World Trade Center, let alone that 1 World Trade Center would therefore collapse and cause Tower 7 to collapse.
The Lessee stated that he will continue to pursue claims [Reuters report] against United concerning Flight 175, which crashed into 2 World Trade Center.

Wednesday's ruling deviated significantly from a previous ruling by Hellerstein. In September, he ruled that American Airlines and United Continental Holdings must stand trial to defend [JURIST report] against a claim by World Trade Center Properties (WTCP), the owners of the World Trade Center towers, who claim that the negligence of the airlines allowed the hijackers aboard the planes which eventually destroyed the towers on 9/11. In so holding, he rejected the defendants' claim that the airlines should not be required to go to trial as WTCP already recovered from insurance companies. In 2007 a $4.09 billion settlement was reached [JURIST report] between insurance companies and WTCP. WTCP was seeking damages from the airlines in the range of $8.4 billion, which they estimate would be the cost of replacing the two towers. The judge in that case has limited to their earnings to the "lesser of fair market value or replacement cost" of the towers which he has put at $2.805 billion—the price WTCO agreed to pay the for the lease for the towers two months prior to the 9/11 attack.




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Federal judge holds former Somalia colonel responsible for 1980s torture
Dan Taglioli on November 21, 2012 1:25 PM ET

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[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Tuesday ruled that a former Somali military colonel was responsible for the torture of a human rights advocate in the 1980s. Colonel Abdi Aden Magan did not present any evidence [AP report] to dispute allegations that he directed subordinates to carry out human rights abuses under the regime of former military dictator Mohammed Siad Barre [NYT profile]. Lawyer and human rights advocate Abukar Hassan Ahmed had alleged three months of torture under the orders of Col. Magan, who at the time served as investigations chief of the National Security Service of Somalia, dubbed the "Black SS" or the "Gestapo of Somalia" due to techniques used to gain confessions from detainees. The Center for Justice and Accountability (CJA) [advocacy website] filed a lawsuit [CJA materials] on behalf of Ahmed in 2010, when Magan was residing in Ohio. Initially Magan argued for dismissal [JURIST report] because the lawsuit was filed in the wrong county and too long after the alleged abuse occurred. After spending some time fighting the allegations Magan left the US for Kenya and has not responded to subsequent court motions. Judge George Smith will now hold a financial determination hearing where Ahmed can testify about the abuse he suffered, but since Magan has left the US it is uncertain whether Ahmed could ever actually receive any damages.

In August the US District Court for the Eastern District of Virginia [official website] awarded $21 million [JURIST report] to seven Somalis in separate CJA lawsuit [CJA materials] against former Somali prime minister Mohamed Ali Samantar [JURIST news archive]. The lawsuit, which started in 2004 and made it to the US Supreme Court [JURIST report] in 2010, alleged Samantar was responsible for the killing and torture of members of the Isaaq clan in Somalia throughout the 1980s under former dictator Siad Barre. In April 2011 the Virginia court denied a motion to dismiss [JURIST report] the lawsuit against Samantar, whose lawyers had argued for dismissal because the statute of limitations had expired and because the courts should not interfere in political matters. That February a federal judge had ruled that Samantar was not entitled to legal immunity from civil lawsuits [JURIST report], following the Supreme Court's 2010 ruling that the Foreign Sovereign Immunities Act of 1976 (FSIA) [28 USC §§ 1330, 1602 et seq. text] does not provide foreign officials immunity from civil lawsuits.




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India executes sole surviving gunman from 2008 Mumbai attacks
Dan Taglioli on November 21, 2012 11:44 AM ET

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[JURIST] The only surviving shooter in the 2008 Mumbai terrorist attacks [BBC backgrounder; JURIST news archive] was executed at a prison in India Wednesday hours after President Shri Pranab Mukherjee [official website] finally rejected the gunman's clemency appeal. Pakistani national Mohammad Ajmal Kasab [WSJ backgrounder; JURIST news archive] was hanged and buried in the prison yard [Guardian report] in the central Indian city of Pune just days before the fourth anniversary of the Mumbai attacks. Kasab was convicted [JURIST report] in May 2010 on more than 80 charges of waging war against India, multiple murders and conspiracy for his participation in the attacks, during which the group of gunmen killed more than 160 people in three days of targeted assaults on luxury hotels, Mumbai's main railway station and a Jewish cultural center. Amnesty International (AI) [advocacy website] and other human rights groups decried the hanging as a step backward for the Indian government, which has not carried out an execution since 2004. AI further charged that India violated international standards on the use of the death penalty [AI report] because Kasab's lawyer and family in Pakistan were not informed of the decision to execute. The execution was carried out two days after the UN General Assembly human rights committee [official website] adopted its fourth draft resolution calling for a moratorium [BBC report] on executions—110 nations voted in favor of the adoption, and 39 countries, including India and the US, voted against.

One day before Kasab's execution the Indian Supreme Court [official website] criticized the inconsistent application of the court's own 32-year-old "rarest of rare" standard [judgment, PDF] for imposition of the death penalty in India: "If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence." Regardless the court had already upheld Kasab's death sentence [JURIST report] in August, finding the shootings to be a cross-border terrorist attack warranting "rarest of rare" punishment. The court had stayed the execution in October 2011 after Kasab filed an appeal challenging his death sentence [JURIST reports], which was ultimately upheld. In February 2011 a lower Indian appeals court also upheld [JURIST report] Kasab's conviction and death sentence.




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Afghanistan government ends death penalty moratorium with 8 executions
Addison Morris on November 21, 2012 11:11 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday urged the Afghan government to institute a moratorium on further executions [press release] after eight men were hanged, marking an end of Afghanistan's four-year virtual moratorium on the death penalty. Human rights advocacy groups, such as HRW, see this mass execution as a step backward for the country's weak legal system and as a revelation on the progress that has yet to be made. Under Afghan law, when a court delivers a death sentence, the president must then sign a death warrant for the execution to occur. According to officials, President Hamid Karzai [BBC profile] signed off [Reuters report] on each of the eight executions. Judicially sanctioned executions have been rare since the Taliban fell, and the country has experienced unofficial death penalty moratoriums from 2001 to 2004, and from 2008 until recently. Until Tuesday's hangings, only two people had been executed in the last four years.

The Afghan government's human rights record has been under scrutiny in the past. In March HRW called on the Afghan government to release women and girls imprisoned [JURIST report] for "moral crimes," many of which involve flight from unlawful forced marriage or domestic violence and "zina," which is sex outside of marriage due to rape or forced prostitution. In December 2011 HRW said that the Afghan government had failed to ensure and protect human rights [JURIST report] since the Taliban government ended 10 years ago. The report alleged that in the last 10 years, the Afghanistan justice system had "remain[ed] weak" and that human rights abuses were rampant in the alternative traditional justice system, where civilians are often forced to resolve disputes in Taliban courts. In July 2010 the advocacy group criticized Karzai's integration and reconciliation efforts [JURIST report] to end the conflict with the Taliban and other insurgent groups, claiming that women's rights were bypassed in order to reach an expedient solution. Among HRW's criticisms was the president's decision to sign the Shia Personal Status Law [JURIST report], which legalized rape within marriage, and his pardon of two convicted rapists.




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Supreme Court grants raisin takings case
Julia Zebley on November 21, 2012 8:32 AM ET

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[JURIST] The US Supreme Court [official website] granted two cases [order list, PDF] on Tuesday. In Horne v. Department of Agriculture [docket; cert. petition, PDF] the court will hear its second case of the term on the Fifth Amendment [text] takings clause. The court will consider whether a party can raise the takings clause as a defense when charged by the government to transfer funds, rather than raising the claim after already complying with the government's mandate. The court will also determine if the US Court of Appeals for the Ninth Circuit [official website] properly waived jurisdiction [opinion] on the issue when they ruled that the US Court of Federal Claims [official website] should have jurisdiction. A group of vineyards in California evaded a US Department of Agriculture [official website] regulation that a certain percentage of raisin crops be kept off the market in a reserve by selling the raisins directly rather than sending them to processors to sell. The Department of Agriculture's regulation limited processors rather than producers, for the purpose of keeping market prices regulated. The vineyard owners were then fined $483,844. The court also heard Arkansas Game & Fish Commission v. United States [JURIST report] earlier this term, also on the takings clause.

The Supreme Court also granted certiorari in Sebelius v. Cloer [docket; cert. petition, PDF]. The US Court of Appeals for the Federal Circuit [official website] ruled [opinion] that Melissa Cloer, who filed a claim against the federal government that was ultimately ruled untimely, could recover her attorney's fees if the claim is found to have merit. The US Department of Health and Human Services [official website] appealed the decision to the Supreme Court.




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Rights group advocates ban on fully autonomous weapons
Jerry Votava on November 21, 2012 7:33 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday issued a report [text, PDF; press release] that describes the threat from and advocates for the ban of fully autonomous weapon systems. These weapons systems are essentially robots that would be able to operate without human direction or interaction, and while they have yet to be used in a combat zone, they are in development for future conflicts. The report expresses concern that, in addition to potential lack of accountability for the effects of the weapons' use, the weapons "inherently lack human qualities that provide legal and non-legal checks on the killing of civilians." The report had a number of recommendations including encouraging countries to:
Prohibit the development, production, and use of fully autonomous weapons through an international legally binding instrument. ... Adopt national laws and policies to prohibit the development, production, and use of fully autonomous weapons. ... [and] Commence reviews of technologies and components that could lead to fully autonomous weapons. These reviews should take place at the very beginning of the development process and continue throughout the development and testing phases.
Finally, HRW advocated the creation of a "professional code of conduct governing the research and development of autonomous robotic weapons."

The use of high technology weapons, including robots, unmanned drones, and cybersecurity attacks, present a myriad of new problems for law- and policy-makers, military planners and the public at large. The challenges include determining which technologies should be permitted, the limits to the manner in which they will be used and the definition of accountability for the results of the various tools. In July, US lawmakers, at a hearing before the US House Committee on Homeland Security [official website], expressed concern [JURIST report] over the use of unmanned drones and sought information on their domestic use and their potential security and safety implications. In April the US House of Representatives [official website] voted to approve a controversial cybersecurity bill [JURIST report] that would allow private companies and the federal government to exchange private security information. In April 2007 a German court ruled [JURIST report] that police in Germany are not permitted to secretly access computer and Internet data stored on suspects' computers without proper authorization.




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