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Legal news from Tuesday, November 8, 2005

BREAKING NEWS ~ Same-sex marriage ban approved in Texas vote
Bernard Hibbitts on November 8, 2005 9:17 PM ET

[JURIST] Texas media are reporting that by a wide margin state voters have approved Proposition 2 [text; Yes campaign website; additional pro-Proposition website; LGRL No campaign website], a constitutional amendment to ban same-sex marriage. The ban was strongly supported by Texas Republican governor Rick Perry; some opponents actually rejected the ban as not being explicit enough [No campaign website] against gays. With 472,553 votes counted, 74 percent favored the measure with 26 percent opposed. The Houston Chronicle has more.

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Former Peru president Fujimori to stay in Chile jail pending extradition
Lauren Becker on November 8, 2005 7:49 PM ET

[JURIST] Former Peruvian president Alberto Fujimori [Wikipedia profile, personal website] was denied release from jail in Chile [JURIST report] Tuesday pending a hearing on his extradition to face 21 Peruvian charges of corruption and human rights abuses during his presidency. Peru has 60 days to petition for Fujimori's extradition and current Peruvian President Alejandro Toledo has sent a high-level delegation to Chile to make arrangements. If convicted, Fujimori could face 30 years imprisonment and a $28.6 million fine for his alleged connection to death squad killings. Chile's arrest of Fujimori and agreement to extradite him may have come as a surprise to the former Peruvian leader who may have expected sanctuary when he arrived in the country Monday from his self-imposed exile in Japan based on Chile's record of blocking extradition for other former leaders. Fujimori fled Peru in the country in 2000 after being accused of corruption and of responsibility in the deaths of 25 people during his presidency. Peru's Supreme Court dropped an electoral fraud case against him [JURIST report] in June, and earlier this month another Peruvian court cleared him of corruption charges [JURIST report] in connection with a 1994 arms deal. AP has more.

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Supreme Court hears home search permissions case
Lauren Becker on November 8, 2005 7:18 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] Tuesday heard oral arguments in Georgia v. Randolph [Duke Law case backgrounder; ABA merit briefs] on whether police may search a home when one resident gives permission but the other does not. The case involves an estranged Georgia couple in which the wife had returned to the home to collect her belongings. The wife granted permission for the search, which led police to evidence in the house that her husband used cocaine. AP has more.

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Germany tries itinerant Holocaust denier
Lauren Becker on November 8, 2005 6:22 PM ET

[JURIST] A court in Mannheim has begun trial proceedings against neo-Nazi Ernst Zundel [ADL profile; CBC backgrounder], a German citizen charged in connection with denying the Holocaust in publications and a website [official website]. Holocaust denial constitutes a crime under Section 130 (3) of the German Federal Criminal Code, which provides:

Whoever publicly or in a meeting approves of, denies or renders harmless an act committed under the rule of National Socialism of the type indicated in Section 220a subsection (1) [genocide], in a manner capable of disturbing the public piece shall be punished with imprisonment for not more than five years or a fine.
Charges against Zundel include incitement, ethnic hatred, and disparaging the dead. Zundel denies the charges of fostering racial hatred and spreading Nazi propaganda based on his right to free speech. Zundel, now 66, left Germany for Canada in 1958, but after a unsuccessful bid to gain Canadian citizenship and a short stay in the United States he was deported from there earlier this year after being judged a national security threat. A Canadian court convicted him in 1988 of "spreading false news" in an anti-Holocaust tract, but the "false news" law was later overturned by the Supreme Court of Canada [judgment], which held it contrary to freedom of expression. Germany issued an international warrant for Zundel's arrest in 2003, and took him into custody immediately after he was returned by Canadian authorities in March 2005. The trial stalled shortly after it commenced Tuesday when the presiding judge threw one of Zundel's lawyers, Horst Mahlerout, out of court on grounds that he had been disbarred for racist sentiments; a verdict is nonetheless expected by November 24. BBC News has more.

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Louisiana AG considering legal action against New Orleans levee designers
Greg Sampson on November 8, 2005 4:53 PM ET

[JURIST] The office of Louisiana Attorney General Charles Foti [official profile] announced Tuesday that it is investigating the possibility of legal action against the companies that designed and constructed the levee systems that led to the flooding of large portions of New Orleans in the aftermath of Hurricane Katrina [JURIST news archive]. Foti's office wants to determine whether errors in the design or construction of the levee's flood control system resulted in the flooding. A spokeswoman for Foti said that a civil suit against the levee engineers was being contemplated as part of an effort to recover damages from private insurers for evacuees who lost property during the flooding, but she did not rule out the possibility of further criminal prosecutions for design or construction errors. The office of New Orleans District Attorney Reuters Eddie Jordan is also investigating the levee breaches. more.

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Alito tells senators abortion ruling deserves respect
Greg Sampson on November 8, 2005 4:14 PM ET

[JURIST] In meetings with US senators on Tuesday, US Supreme Court nominee Samuel A. Alito [official profile; US News profile; JURIST news archive] said that the Court's 1973 Roe v. Wade decision guaranteeing women the right to an abortion was long-standing precedent and therefore entitled to respect. Speaking to Sen. Joseph Lieberman (D-CT) he did not, however, commit to upholding the decision in the future. Although pro-choice Senators were encouraged by their latest discussions with Alito, the abortion issue is still likely to be a key issue during January's confirmation hearings. AP has more.

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Environmental brief ~ EPA to propose lead-based paint regulations for home remodeling
Tom Henry on November 8, 2005 3:35 PM ET

[JURIST] Leading Tuesday's environmental law news, the US Environmental Protection Agency [official website] has announced it will propose regulations for remodeling or renovating a home with lead-based paint by the end of the year. A federal law [text] had been passed in 1992 that requires contractors to disseminate information to homeowners [EPA factpage] before renovating certain properties, but the EPA has yet to adopt any corresponding regulations establishing the standards to be followed. AP has more.

In other environmental law news...

  • Judge David Bunning of the US District Court for the Eastern District of Kentucky [official website] heard a case Monday that sought an injunction against the US Army Corps of Engineers (CoE)[official website] from issuing permits that would allow mountaintop mining. Mountaintop mining [official backgrounder] pushes the tops of hills into an adjacent valley to expose coal veins. Opponents of the practice argue that streambeds and other waterways are often buried or otherwise adversely effected in the process. Last year, a federal district judge ruled [PDF text] that the CoE failed to comply with the federal Clean Water Act [PDF text] in approving valley fill permits in southern West Virginia. AP has more.

  • Health Canada [official website], the Canadiam federal department of health, has banned the use of lead acetate in cosmetics, beginning in 2007. Products containing the compound include Grecian Formula 16 [corporate website], traditionally used by males to darken graying hair. Lead acetate has been banned from cosmetics in the European Union and the state of California, as a potential carcinogen. The US Food and Drug Administration [official website] has determined that there is no safety hazard with the compound when used as instructed and allows for its use in cosmetics, following certain labeling requirements [FDA backgrounder]. The Ottawa Citizen has more.

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US military accused of illegally using chemical weapons against Iraqis
Greg Sampson on November 8, 2005 3:01 PM ET

[JURIST] Italian state TV RAI [media website] Tuesday aired a documentary accusing the United States of using the chemical white phosphorus [CDC factsheet; GlobalSecurity.org backgrounder] against both insurgents and civilians during a military assault on the insurgent-controlled city of Fallujah last year. Reports that US forces fired white phosphorous rounds into the city, causing severe burns, were circulated at the time [SF Chronicle report], and rights organizations expressed repeated concerns over alleged violations of international humanitarian law [JURIST report] during the siege. The US, however, denied the allegations [USINFO report] and said that US forces were "not using any illegal weapons in Fallujah or anywhere else in Iraq." Although there is currently no treaty specifically banning the use of white phosphorus, the 1980 Geneva Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons [text] bans the use of any incendiary weapons against civilian populations or in any area where high concentrations of civilians live. White phosphorus burns easily and is commonly used to illuminate nighttime battlefields; however, exposure to the chemical can cause substantial medical problems, including burns and irritation as well as organ damage. The US admits to using white phosphorus to illuminate some Iraqi battlefields, but denies using the chemical directly on individuals. BBC News has more.

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Frist, Hastert call for investigation into leak of CIA secret prison information
Greg Sampson on November 8, 2005 2:56 PM ET

[JURIST] US Senate Majority Leader Bill Frist [official website] and House Speaker Dennis Hastert [official website] on Tuesday called for a Congressional investigation into who leaked information on secret Central Intelligence Agency [official website] prison facilities in Eastern Europe rumored to be used to detain international terrorism suspects. Last week, the Washington Post reported that the CIA was holding suspected al Qaeda members in a covert prison system [JURIST report]. Both Frist and Hastert asserted Tuesday that if the leaked information on the prison system was accurate, it could have "far-reaching damaging and disastrous consequences" on the United States' ability to fight an effective war on terror. AP has more.

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Pentagon issues new rules governing terror detainee interrogations
Greg Sampson on November 8, 2005 2:32 PM ET

[JURIST] The Pentagon on Tuesday announced [press release] it has issued a new directive restricting interrogation practices of suspected terrorists. Department of Defense Directive 3115.09 [PDF text; NYT report] establishes the broad requirement that all intelligence interrogations of detained individuals be conducted in a humane manner. Although the directive was intended to set general policy rather than specific rules, it specifically prohibits the use of dogs to intimidate or harass detainees during interrogation procedures. This new directive is the latest step taken by the Pentagon to curtail abuse during detainee interrogations. Earlier this month, the Pentagon issued an updated version of Department of Defense Directive 2310.1 [1994 text], which included language from the Geneva Conventions and sparked a debate [JURIST report] within the Bush Administration. Advocates of that directive believed that bringing interrogation policies in line with the Geneva Conventions would help prevent further abuses, but critics argued that the directive's language was overly vague and would restrict the government's ability to wage an effective war on terror. AP has more on today's announcement.

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Nigerian separatist leader charged with treason
Christopher G. Anderson on November 8, 2005 1:47 PM ET

[JURIST] Ralph Uwazurike [This Day profile], the leader of a Nigerian separatist organization has been charged with treason for his role in campaigning for the creation of an independent Biafra Nation [advocacy website]. Uwazurike and six other alleged co-conspirators have denied any intention to take up arms to intimidate the Nigerian government [CIA backgrounder]. Uwazurike is the alleged leader of the Actualisation of the Sovereign State of Biafra, or MASSOB, an outlawed organization that wants a separate state for the Igbo people [University of Iowa backgrounder] in the south-eastern district of Nigeria. The Igbo unsuccessfully fought a three-year civil war that ended in 1970 in an attempt to defect from the rest of Nigeria. If found guilty, Uwazurike could face the death penalty. BBC News has more.

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New judge sets Nov. 22 hearing date in DeLay case
Christopher G. Anderson on November 8, 2005 1:23 PM ET

[JURIST] The first hearing in the criminal trial of US Rep. Tom DeLay [official website; JURIST news archive] will be held November 22, Senior Judge Pat Priest has announced. Attorneys for DeLay have asked the judge, who was appointed to the case [JURIST report] last week, to first hear a motion for change of venue; DeLay has said that the trial should be moved out of Travis County because there exists in the county, "so great a prejudice against me that I cannot obtain a fair and impartial trial." DeLay has also asked the judge to consider motions to quash the indictments and to sever his trial from his co-defendants, John Colyandro and Jim Ellis. DeLay and his alleged co-conspirators are accused of violating state election law, money laundering and conspiracy to commit money laundering in connection with how a DeLay-founded lobbying organization spent corporate money in the 2002 Texas House elections. The Houston Chronicle has more.

 Op-ed: Tom DeLay's Challenge to Texas Grand Jury Process

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Rwanda seeks high court permission to send priest to Belgium for genocide trial
Christopher G. Anderson on November 8, 2005 1:02 PM ET

[JURIST] The Rwandan government wants to send a Catholic priest back to his home of Belgium to face trial on genocide charges and asked its highest court on Tuesday for permission to do so. Catholic missionary Guy Theunis is accused [JURIST report] of publishing extremist articles that incited Hutus to kill Tutsis during the 1994 genocide in Rwanda [JURIST news archive]. Theunis worked in Rwanda as a member of the White Fathers Catholic order from 1970 until 1994 and has made no objection to standing trial in Belgium. He was the first foreigner to appear before Rwanda's community gacaca courts [official website], which were established to investigate more than 760,000 people believed to have been involved in the 100-day massacre of Tutsis. Theunis' case was subsequently referred to a higher court that has authority to impose the death penalty for genocide crimes. In September, Belgium proposed that Theunis be transferred to Belgium where he would face trial if a Belgium judge investigating the charges decided to prosecute. Rwanda's high court is expected to rule on the request on Wednesday. Reuters has more.

Previously in JURIST's Paper Chase...

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US to proceed with Hicks military trial despite Supreme Court case
Brandon Smith on November 8, 2005 12:37 PM ET

[JURIST] The Pentagon has said that it is committed to proceeding with a preliminary military commission hearing for Australian Guantanamo Bay [JURIST news archive] detainee David Hicks [BBC profile; JURIST news archive] despite the US Supreme Court's announcement Monday that it will hear a case challenging the legality [JURIST report] of the military commissions. The Pentagon says that it will not voluntarily delay the November 18th start [JURIST report] of Hicks' case while it waits for the outcome of the Supreme Court hearing. Hicks' military lawyer, Major Michael Mori [Ninemsn profile], has said he is surprised the Pentagon plans to proceed "when the US Supreme Court is going to review the lawfulness of [the] process," and is considering asking a civil court to impose a stay on Hicks' hearing which would force the Pentagon to delay Hicks' trial. Hicks has been held at Guantanamo Bay since 2002 when he was captured fighting alongside the Taliban in Afghanistan. Australia's ABC News has more.

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Supreme Court rules for workers in pay dispute
Christopher G. Anderson on November 8, 2005 12:05 PM ET

[JURIST] The US Supreme Court [official website] ruled Tuesday in IBP Inc. v. Alvarez [Duke Law backgrounder] that meat packing companies must pay their workers for the time it takes to change into and out of protective clothing and other safety equipment, in addition to the time it takes the employees to walk to their work stations. In the unanimous opinion [PDF text], Justice Stevens wrote that both "donning and doffing" of safety gear and the time it takes workers to walk to the production areas are "integral and indispensable" to the employees' workweek, entitling workers to compensation under the Fair Labor Standards Act of 1938 (FLSA) [PDF text]. The Court also held, however, that under the Portal-to-Portal Act of 1947 [PDF text], which exempts certain activities from the FLSA, workers were not required to be compensated for time they spent waiting in line for equipment.

In a second unanimous opinion handed down Tuesday, the Court held in United States v. Olson [Duke Law backgrounder] that the US Court of Appeals for the Ninth Circuit [official website] ruled too broadly in allowing a lawsuit brought by two mineworkers against the US federal government. Justice Breyer wrote that, under the Federal Tort Claims Act (FTCA) [text], suits against the government were permitted only where local law would make a "private person" liable in tort, not where local law would make "a state or municipal entity" liable. The Ninth Circuit had held that because Arizona law would have allowed a suit against the federal government, the negligence lawsuit could proceed. Read the Court's opinion [PDF text]. AP has more.

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Japan appeals ruling requiring compensation for Taiwan leprosy patients
Kate Heneroty on November 8, 2005 11:22 AM ET

[JURIST] The Japanese Health and Welfare Ministry [official website, English version] announced Tuesday it plans to appeal a court ruling requiring the nation to pay compensation to former Taiwanese leprosy [CDC backgrounder] patients who were incarcerated during Japanese colonial rule, between 1916 and 1945. Last month, the Tokyo District Court held that a 2001 law requiring compensation for Japanese leprosy patients should also be applied to its former colonies. On the same day the court ruled in favor of the Taiwanese patients, different judges on the same court dismissed an identical case brought by South Korean victims. That decision has already been appealed. The cases stem from a Japanese law which subjected patients to forcible incarceration in isolation centers, as well as forced sterilization and abortions to avoid the spread of the disease, which is curable and not easily communicated. Reuters has more. Mainichi Daily News has local coverage.

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US voters rule on redistricting, gay rights, other issues in off-year elections
Kate Heneroty on November 8, 2005 10:40 AM ET

[JURIST] Americans went to the polls Tuesday to cast ballots in off-year elections. Voters in New Jersey and Virginia are electing new governors [Reuters report], while 39 ballot measures are up for approval in seven states [Stateline.org report]: California, Maine, New Jersey, New York, Ohio, Texas, and Washington.

Voters in California and Ohio will determine how electoral districts should be redrawn. Californians will decide [SF Chronicle report] whether to remove redistricting power from legislators [JURIST report] and allocate it to a panel of three retired judges, and will also consider Governor Arnold Schwarzenegger's initiatives to cap state spending. In Ohio, voters will decide on whether to create a State Board of Elections [Cleveland Plain Dealer coverage of ballot initiatives] to oversee operations currently handled by the Secretary of State. Ohioans are also considering whether to allow voters to cast their absentee ballots without stating a reason, and whether to rescind an increased campaign spending limit passed earlier in the year.

In Texas, voters are expected to approve a constitutional amendment prohibiting same-sex marriage [The Monitor election coverage], while voters in Maine are expected to ratify [Portland Press Herald coverage] a state law prohibiting discrimination based on sexual orientation in employment and housing. Washington voters have six ballot initiatives [Seattle Post-Intelligencer coverage] before them, including elimination of a 9.5-cents-per-gallon gasoline tax increase. USA Today has more.

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China, Saudi Arabia cited by US for violating religious freedom
Kate Heneroty on November 8, 2005 9:55 AM ET

[JURIST] The US Department of State [website] on Tuesday is releasing its annual list of states considered to be serious violators of religious freedoms, opening the named states to potential sanctions. Officials say countries deemed to be "of particular concern" include China, Eritrea, Iran, Myanmar, North Korea, Saudi Arabia, Sudan and Vietnam. Uzbekistan [JURIST news archive; USCIRF press release] is notably said to be missing from the list, despite the recommendation of the United States Commission on International Religious Freedom (USCIRF) [commission website; annual recommendations, PDF], a congressionally-funded, bipartisan agency. An unnamed official said Uzbekistan was not included because "it would look too political," and the Bush Administration feared the appearance it was in retaliation for Uzbekistan's eviction of US troops from an air force base in the country. A 180-day waiver from sanctions was issued for Saudi Arabia by Secretary of State Condoleezza Rice in September because she wanted "to allow additional time for the continuation of discussions leading to progress on important religious freedom issues." Reuters has more. Though the 2005 list is not yet available online, the State Department has previous International Religious Freedom reports.

4:36 PM ET - The 2005 Annual Report on International Religious Freedom [index] is now available online, along with a fact sheet from the State Department.

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Five judges elected to International Court of Justice
Kate Heneroty on November 8, 2005 9:27 AM ET

[JURIST] Members of the United Nations Security Council and General Assembly elected five judges [UN press release] to the fifteen member International Court of Justice (ICJ) [official website] Monday. The ICJ is the UN's highest court and settles disputes between governments and issues advisory opinions on topics presented by UN bodies. American Thomas Buergenthal [official profile], a professor of international law and a former judge of the Inter-American human rights court was reelected to his second term. New judges include: Mohamed Bennouna [profile] from Morocco, Kenneth Keith [profile] from New Zealand, Bernardo Sepulveda Amor [profile] of Mexico, and Leonid Skotnikov of Russia. Each judge will serve a nine-year term and cannot hold another office during that time. No two judges can come from the same home country and efforts are taken to ensure that the primary world legal systems are represented. The ICJ Rules of Court [text] has more information on the election of judges. Reuters has more.

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France authorizes emergency powers to cope with riots
Kate Heneroty on November 8, 2005 9:05 AM ET

[JURIST] France's Interior Ministry [official website, in French] announced Tuesday that the government has authorized local officials to use emergency powers [press release] to help deal with riots that have broken out across the country [JURIST report] over the past 12 days, mostly instigated by disaffected Muslim immigrant youths. The emergency powers, which enable authorities to impose curfews and carry out raids without warrants, stem from a 1955 law [amended text; original 1955 version - page 1 and page 2, PDFs] which has never been implemented in France itself, but has been used in French colonial conflicts in Algeria and New Caledonia. Prime Minister Dominique de Villepin [BBC profile] declined to bring in the army as violence raged outside of Paris again Monday night, but has imposed curfews and deployed an additional 1,500 police officers [JURIST report] to aid the nearly 8,000 already dealing with the unrest. BBC News has more. Le Monde has local coverage (in French).

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Wal-Mart executives knew of illegal workers, unsealed affidavit shows
Jeannie Shawl on November 8, 2005 8:59 AM ET

[JURIST] Two senior Wal-Mart [corporate website] executives were aware that cleaning contractors were hiring illegal immigrants, according to an affidavit filed by the US Bureau of Immigration and Custom Enforcement [official website] as part of an effort to secure a search warrant for a 2003 raid on Wal-Mart headquarters. The investigation lead to raids on 60 Wal-Mart stores [JURIST report] in 21 states and the arrests of over 200 illegal workers. Earlier this year, Wal-Mart paid $11 million to settle DOJ allegations [JURIST report] that it employed over 345 illegal immigrants directly and through janitorial contractors, but the affidavit was unsealed as part of an ongoing civil lawsuit brought by former employees [JURIST report]. According to the plaintiffs' attorney, the affidavit shows that "top Wal-Mart executives conspired with contractors to exploit undocumented immigrants," though Wal-Mart says that there was no incriminating evidence in the affidavit and that " no company senior official had any direct knowledge that undocumented workers were working in our stores." AP has more.

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BREAKING NEWS ~ Second Saddam trial lawyer assassinated
Jeannie Shawl on November 8, 2005 8:05 AM ET

[JURIST] AP is reporting that a lawyer for a co-defendant of Saddam Hussein [JURIST news archive] has been assassinated in Baghdad. Last month, Saadoun Sughaiyer al-Janabi, a defense lawyer for one of Hussein's co-defendants, was kidnapped by 10 masked gunmen [JURIST report] and later found dead [JURIST report]. Hussein's lawyers have since demanded a delay in proceedings or a foreign venue [JURIST report] and have announced a court boycott [JURIST report] over security concerns.

8:25 AM ET - According to a member of the defense team, Adel al-Zubeidi, who was representing former VP Taha Yassin Ramadan, was killed in an ambush Tuesday. A second lawyer with Ramadan was wounded during the attack. AP has more.

Previously in JURIST's Paper Chase...


 Topic: Saddam Hussein Trial | Op-ed: The Reckoning: Trying Saddam Hussein

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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