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Legal news from Wednesday, June 7, 2006

Disciplinary panel to investigate Spain judge in release of Madrid bombing suspect
Joshua Pantesco on June 7, 2006 2:44 PM ET

[JURIST] The disciplinary committee of Spain's General Judicial Council said Wednesday that it will investigate why Spanish judge Juan Del Olmo [Europa Press profile, in Spanish] failed to apply for an extension of the detainment of a suspect in the March 11, 2004 Madrid train bombings [JURIST news archive]. As a result of Del Olmo's failure to ask for the extension, a High Court judge was forced to release [JURIST report] Saed El Harrak [BBC profile] last month, though he must check in with authorities twice a day and remain in Madrid indefinitely. Harrak is one of the 29 suspects indicted for the bombings [JURIST report], and he is charged with collaborating with a terrorist organization, accusations stemming from telephone calls he made before the bombings to other suspects accused of carrying out the attacks.

Del Olmo may have suffered from bad health when he made the mistake not to apply for the extension, and was replaced by another High Court judge soon thereafter. He has said the mistake was due to a typing error [AP report]. Reuters has more.

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Washington gay civil rights law takes effect
Joshua Pantesco on June 7, 2006 1:34 PM ET

[JURIST] Washington's gay civil rights act [HB 2661 text, PDF] took effect on Wednesday, after opponents of the legislation failed to collect enough signatures to put the bill before voters. The law rewrites Washington's Civil Rights Act to include the phrase "sexual orientation" among the classes of people protected from housing discrimination, lending, and employment. Opponents of the bill failed to collect the 112,440 signatures required by Wednesday to place Referendum 65 [advocacy website] on the November ballot, which would have asked voters whether the anti-discrimination law should be thrown out.

The civil rights act overhaul was signed by the governor [JURIST report] after it was approved by the House and Senate [JURIST report] in January. Washington is now the 17th state in the nation with an anti-discrimination law that covers sexual orientation. AP has more.

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Senate judiciary panel again takes up asbestos compensation bill
Jaime Jansen on June 7, 2006 1:27 PM ET

[JURIST] The US Senate Judiciary Committee [official website] on Wednesday revived debate on the Fairness in Asbestos Injury Resolution Act (FAIR) [PDF text; bill summary; JURIST news archive] at a Judiciary Committee hearing [meeting materials] to discuss changes to the bill. The asbestos compensation bill outlines a plan that would create a $140 billion trust fund financed through revenues from companies facing asbestos litigation and their insurers, and would effectively remove asbestos-related personal injury claims from the courts by funding asbestos claims through the private fund. The former director of the Congressional Budget Office, Douglas Holtz-Eakin, warned [testimony transcript] that the trust fund would likely fall short of the liabilities asbestos manufacturers will face, and taxpayers will wind up paying for the claims. Holtz-Eakin added that the pressures the fund would face when starting up would likely cause it to spend more than half of its total expenditures in the first ten years, though it would take 30 years to collect the projected $140 billion maximum revenues. Senate Judiciary Committee Chairman and bill sponsor Arlen Specter (R-PA) [official website] seemed offended by Holtz-Eakin's presumption that future Congresses will have to use tax revenues to pay for the fund shortfalls.

The asbestos compensation bill failed [JURIST report] to garner the necessary 60 votes for to prevent a filibuster in the Senate earlier this year, falling just one vote short. Sen. John Ensign (R-NV) [official website] and fiscal conservatives [Freedomworks press release] invoked a budgetary rule [JURIST report] barring legislation that would up US government spending by more $5 billion in any of four decades after 2016 in an effort to kill the asbestos compensation bill. Insurance companies oppose the bill [Insurancenewsnet report], arguing that it will not effectively end litigation, while trial attorneys view the bill as a cop-out denying victims their right to sue for damages [ATLA resources]. MarketWatch has more.

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China state secrets trial of NYT researcher postponed
Joshua Pantesco on June 7, 2006 12:59 PM ET

[JURIST] The Chinese government has postponed the trial against former New York Times researcher Zhao Yan [HRIC profile, PDF], which was scheduled to begin Thursday, Zhao's lawyer said Wednesday. Zhao was indicted for "providing state secrets to foreigners" following a 2004 New York Times report [text] that revealed the resignation of Jiang Zemin as head of the military before it was formally announced.

China first formally indicted Zhao on the state secrets charges in December, but dropped the charges in March while continuing to detain Zhao [JURIST reports]. China has insisted that Zhao's continued detention is legal [JURIST report]. Zhao's lawyer said Wednesday that no formal date has been scheduled for the retrial. The International Herald Tribune has more.

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Dutch timber dealer receives split verdict on Liberia arms trafficking charges
Joshua Pantesco on June 7, 2006 11:40 AM ET

[JURIST] A Dutch court convicted arms dealer Guus Kouwenhoven [Trial Watch backgrounder] of violating the UN embargo against former Liberian President Charles Taylor's government, but found him not guilty of war crimes, saying he did not have direct knowledge of the atrocities committed during the Liberian civil war. Kouwenhoven was generally accused of trading guns for timber [Radio Netherlands report] to assist Taylor in destabilizing Sierra Leone in a bid to gain access to diamond stockpiles. The UN Security Council released a 2001 report [PDF text] banning Kouwenhoven from traveling, accusing the arms dealer of breaching Security Council Resolution 1343 [PDF text], the embargo against the Taylor regime, and of being "someone who supported the efforts of ex-President Taylor in destabilising Sierra Leone to gain illegal access to its diamonds."

Both the prosecution and the defense plan to appeal the split verdict, as lawyers for Kouwenhoven say he was merely "involved" with the Oriental Timber Co. [Perspective backgrounder] through which the deal was made, while the prosecution says there is enough evidence to convict Kouwenhoven on the more serious war crimes charges, though the ruling said the connection was too vague. Taylor [JURIST news archive] is currently awaiting trial before the Special Court for Sierra Leone [official website] on charges [indictment, PDF] of crimes against humanity and violations of international humanitarian law. AP has more.

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Europe rights watchdog says CIA prisons, rendition flights involve 'web' of nations
Jaime Jansen on June 7, 2006 11:39 AM ET

[JURIST] Fourteen European countries collaborated with the US Central Intelligence Agency by taking an active or passive role in a "global spider's web" of secret prisons and rendition flights, Swiss legislator Dick Marty said Wednesday in a report [PDF text] from the Legal Affairs Committee of the Council of Europe [official website], as part of the CoE's investigation into alleged secret detention centers [CoE materials] and illegal rendition flights [JURIST news archive] operated by the CIA in Europe. In the report, Marty concludes:

280. Our analysis of the CIA 'rendition' programme has revealed a network that resembles a 'spider's web' spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as on other information including from sources inside intelligence services, in particular the American. This 'web', shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.

281. These landing points are used for various purposes that range from aircraft stopovers to refuel during a mission to staging points used for the connection of different 'rendition circuits' that we have identified and where "rendition units" can rest and prepare missions. We have also marked the points where there are known detention centres (Guantanamo Bay, Kabul and Baghdad...) as well as points where we believe we have been able to establish that pick-ups of rendition victims took place.

282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications have us believe that they are likely to form part of the 'rendition circuits'. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes, but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption - already based on other elements - that these landings are detainee drop-off points that are near to secret detention centres. ...

284. It must be emphasised that this report is indeed addressed to the Council of Europe Member states. The United States, an observer state of our Organisation, actually created this reprehensible network, which we criticise in light of the values shared on both sides of the Atlantic. But we also believe to have established that it is only through the intentional or grossly negligent collusion of the European partners that this "web" was able to spread also over Europe.

285. The impression which some Governments tried to create at the beginning of this debate - that Europe was a victim of secret CIA plots - does not seem to correspond to reality. It is now clear - although we are still far from having established the whole truth - that authorities in several European countries actively participated with the CIA in these unlawful activities. Other countries ignored them knowingly, or did not want to know. ...

287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are 'guilty' for having tolerated secret detention sites, but rather it is to hold them 'responsible' for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations.
Marty referenced the cases of 17 detainees who claim they were kidnapped by US agents and transported to facilities around the globe, including in Romania and Poland. Romania and Poland both deny any wrongdoing [JURIST report], though Marty accused both countries of avoiding his requests for information and failing to adequately investigate the accusations on their own. Marty said that flight logs seemed to substantiate the allegations but also acknowledged that he had no direct proof.

The European Parliament [official website] is also conducting its own investigation [JURIST report] and members of that committee have indicated that more than 1,000 CIA flights stopped in Europe [JURIST report] since the Sept. 11, 2001 terrorist attacks. The Council of Europe Parliamentary Assembly at the end of June will debate Marty's report and an accompanying draft resolution calling on CoE member states to review their laws that regulate intelligence services and bilateral agreements with the US to "ensure that these agreements conform fully to applicable international human rights norms." AP has more. BBC News has additional coverage.

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France minister supports saving some school children of illegals from deportation
Joshua Pantesco on June 7, 2006 11:17 AM ET

[JURIST] French Interior Minister Nicolas Sarkozy [BBC profile] said Monday that he supports changing a proposed immigration bill [text; legislative materials] now under debate [session transcript] in the French Senate to allow some children of illegal immigrants currently attending French schools to remain in the country. According to administration officials, as many as 800 residency permits will be made available on a case-by-case basis to families with children in French schools who have few linguistic or social connections to their parents' home countries. However, critics of the bill say that while the changes proposed by Sarkozy are positive, as many as 100,000 immigrant families with children attending French schools may still face deportation [Mrap press release, in French].

The French National Assembly passed a conservative immigration bill [JURIST report] in May that tightens restrictions on unskilled, non-EU immigrants and requires immigrants to sign a pledge to learn French and to abide by French law. The version passed by the National Assembly would allow the expulsion of children with no ties to their parents' home countries, prompting advocacy groups to pressure government to ease those provisions. BBC News has more. Le Monde has local coverage, in French.

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Saddam lawyer says Iraqi court controlled by US
Jaime Jansen on June 7, 2006 10:56 AM ET

[JURIST] American jurists control the court trying Saddam Hussein [JURIST news archive] by directing the judge and controlling meetings between the defense team and Hussein, one of Hussein's lawyers said Tuesday. In a Beirut news conference, Bushra al-Khalil, the controversial defense lawyer who has been thrown out of court twice [JURIST report], said a team of American jurists passes notes to Chief Judge Raouf Abdel-Rahman [BBC profile] during trial sessions at the Iraqi High Tribunal and watches proceedings from a surveillance room outside the courtroom that cannot be seen from inside the courtroom.

US officials responded by saying that Americans do advise the court, but do not control its decisions, noting that the American support team indeed works in an area of the courtroom without public access including the area al-Khalil mentioned. A court spokesman added that all decisions made by the court are "100 percent Iraqi." Al-Khalil's statements come shortly after the defense team accused prosecution witnesses of perjury [JURIST report], and later alleged that four defense witnesses accused of perjury were abused while in detention [JURIST report]. AP has more.

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BREAKING NEWS ~ Marriage amendment stalls on Senate floor
Jeannie Shawl on June 7, 2006 10:49 AM ET

[JURIST] The US Senate Wednesday morning voted 49-48 [MFTF log] against holding an up-or-down vote on the Marriage Protection Amendment [PDF text; SJ Res 1 summary], rejecting a motion to invoke cloture [Senate backgrounder]. Though the Senate voted to continue debate on the resolution, the issue is not expected to remain on the agenda for debate on the Senate floor, so the vote effectively ends the Senate's current consideration of the proposed amendment.

The Senate began consideration of the constitutional amendment [JURIST report], which would define marriage exclusively as a union between a man and a woman, earlier this week. President Bush had urged Congress to approve the amendment in his weekly radio address [JURIST report] Saturday, condemning "activist" judges [JURIST report] that have struck down state laws banning same-sex marriage. To become law, a constitutional amendment requires a two-thirds majority in each house of Congress followed by ratification by three-quarters of the states. AP has more.

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Afghanistan officials arrest 250 for riots after deadly crash
Joshua Pantesco on June 7, 2006 10:47 AM ET

[JURIST] Over 250 Afghans were arrested, 141 are still in custody, and 52 have confessed to crimes committed during anti-American riots in Kabul [BBC report] last week in response to an incident where a US military vehicle collided with 12 civilian vehicles in northern Kabul, the Afghani national security director said Wednesday. At least seven people were killed during the riots, where conflicting reports suggest that either US soldiers or Afghani police fired into the crowd to quell the unrest.

The parliament of Afghanistan passed a nonbinding resolution [JURIST report] last week calling for the prosecution of the US soldiers responsible for the crash, which killed as many as five civilians, though US military spokesperson Col. Tom Collins has blamed the crash on an unintentional brake failure. Collins said Wednesday that Afghani investigators will have full access to US soldiers during their investigation, though the US Ambassador to Afghanistan said last week that US soldiers cannot be prosecuted by the Afghani government [JURIST report]. President Bush last week said that the US military would launch an investigation [AP report] into the crash and subsequent riots to see if US soldiers fired at the angry demonstrators. AP has more.

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Iraq frees first 600 detainees after PM announces reconciliation bid
Jaime Jansen on June 7, 2006 10:32 AM ET

[JURIST] Iraqi officials on Wednesday released nearly 600 detainees who had been in Iraqi and US custody – the first of 2,500 detainees slated to be released under the order [JURIST report] of Iraqi Prime Minister Nouri Maliki [BBC profile]. In the interest of national reconciliation, Maliki said Tuesday that detainees without clear evidence against them and without Iraqi "blood on their hands" would be released. Saddam Hussein loyalists and terrorists are also excluded.

The move is seen as an attempt by the hardline Shiite prime minister to appease the Sunni minority, which is largely responsible for the insurgency against the Iraqi government. Maliki made releasing detainees who were detained mistakenly or without sufficient evidence a priority when he began his term in May [JURIST report]. The US military and Iraqi officials have detained an estimated 28,000 people. Most, like Hussein, are Sunnis. Reuters has more.

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France court fines government, railway for deporting Jews during Holocaust
Joshua Pantesco on June 7, 2006 10:29 AM ET

[JURIST] A French trial court has ordered the French government and the state-controlled railway SNCF [corporate website] to pay 60,000 euros, or about $80,000 US, in compensation to a Jewish family for complicity in crimes against humanity. The case [Haaretz report] was brought by European Parliament member Alain Lipietz [official website] and his sister on behalf of their father and relatives who were taken by an SNCF train to the Drancy transit camp [JVL backgrounder] in 1944. SNCF continued to bill the French government for transportation even after World War II ended, and the ruling acknowledged that SNCF did more than it was asked to do by the Nazis.

The lawyer for SNCF plans to appeal the decision, saying that SNCF had no choice but to comply with Nazi demands and that the statute of limitations had run on the claim. BBC News has more.

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Australia federal government to strike down civil unions law in capital district
Joe Shaulis on June 7, 2006 10:07 AM ET

[JURIST] Australian Prime Minister John Howard [official profile] and his Cabinet have announced [AG press release] that the federal government will set aside legislation allowing same-sex civil unions in the Australian Capital Territory [official website], the federal district that includes Canberra. Speaking Tuesday at a press conference [transcript], the prime minister said:

Well I can indicate that the legislation by its own admission is an attempt to equate civil unions with marriage and we don't find that acceptable. Our view is very simple and that is that the founding fathers in their wisdom gave constitutional authority in relation to these matters to the Commonwealth. We legislated in a bipartisan fashion to define marriage and we are not prepared to accept something which is a plain attempt to equate civil unions with marriage and we don't agree with that. ...
The ACT legislative assembly passed the Civil Unions Bill 2006 [legislative materials] last month. Under a provision [text] in the ACT Self-Government Act of 1988, the federal government may disallow any ACT enactment within six months. The Cabinet's decision will take effect Aug. 1 unless the federal Parliament [official website] overrides it. ACT officials condemned the action [AAP report] and said they would ask Governor-General Michael Jeffery [official profile], the Queen's representative in Australia, to reject it. The Australian has more. AAP has additional coverage.

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Specter drops bid to subpoena phone companies on alleged record turnover
Joshua Pantesco on June 7, 2006 9:48 AM ET

[JURIST] Sen. Arlen Specter (R-PA), chairman of the US Senate Judiciary Committee, has said that he has abandoned his plan to subpoena executives of three top phone companies after Vice President Dick Cheney said Tuesday that national security concerns would prevent executives from speaking about allegedly providing phone records to the NSA. Verizon and BellSouth [JURIST, AP reports] have denied the USA Today report accusing them of turning customer phone records over to the NSA [JURIST report], while AT&T has refused to comment.

Specter said that in exchange for dropping his plan to subpoena the phone companies, the Bush administration has hinted that it may support Specter's bill [JURIST report] that would allow the Foreign Intelligence Surveillance Court [FJC backgrounder], established under the 1978 Foreign Intelligence Surveillance Act [text], to conduct a review of the NSA's domestic surveillance program [JURIST news archive] every 45 days to ensure that the anti-terrorist surveillance is being conducted properly. Since Specter introduced the proposal, the bill has been diluted through compromise [JURIST report] so that the Bush administration would not have to seek FISC approval for domestic spying. Specter has also considered proposing a bill [JURIST report] to eliminate NSA funding if the Bush administration "continues to walk all over Congress."

Specter also said that the committee will again question US Attorney General Alberto Gonzales on domestic surveillance, but expressed frustration at his unwillingness to answer questions at previous hearings [JURIST report]. Reuters has more.

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UK attorney general to call for review of military prosecutions: newspaper
Joe Shaulis on June 7, 2006 9:16 AM ET

[JURIST] UK Attorney General Lord Peter Goldsmith [official profile] will call for prosecutors to study whether the British court-martial system is adequate for prosecuting soldiers accused of misconduct in Iraq [JURIST news archive], the Times of London reported Wednesday. The development follows Tuesday's acquittal of three infantrymen [JURIST report] accused of manslaughter in the death of a 15-year-old Iraqi boy who prosecutors said was ordered to swim across a canal, where he drowned. The jury deliberated for only five hours before rendering a verdict, and the court-martial cost £2.5 million (about $4.6 million US). A court-martial acquitted a fourth Guardsman [JURIST report] of related charges last month, and in October seven British paratroopers were found not guilty [JURIST report] of murdering an Iraqi civilian. Goldsmith reportedly wants the prosecutors to identify the acquittals' potential implications for three misconduct cases that are still pending. One, scheduled for trial in September, involves seven members of the Queen's Lancashire Regiment and the Intelligence Corps accused of beating an Iraqi hotel clerk to death [BBC report].

The UK Ministry of Defense [official website] defended the result of the latest court-martial [BBC report] but has acknowledged the need for changes to bring courts-martial in line with the civilian justice system. An Armed Forces Bill [parliamentary materials] before the House of Commons [official website] would establish a separate prosecution authority for each branch of the military, replacing the current consolidated system. The Times has more.

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New US military medical guidelines for detainee treatment allow force-feeding
Jaime Jansen on June 7, 2006 8:48 AM ET

[JURIST] The US Department of Defense [official website] has issued comprehensive guidelines for the treatment of detainees that direct doctors to force-feed detainees who endanger their own lives as a result of a hunger strike. The guidelines [PDF text], aimed primarily at the recent wave of hunger strikes [JURIST report] by detainees at Guantanamo Bay [JURIST news archive], also gives doctors a limited consultation role in interrogations. US Assistant Secretary of Defense for Health Affairs Dr. William Winkenwerder [official profile] described the guidelines [transcript], which formalize policies already in place, as "humane" and "based on high medical standards and ethical treatment of people," adding that the guidelines are part of an effort to preserve the lives of detainees and protect people working at detention centers as well.

The new guidelines drew criticism [press release] from Physicians for Human Rights (PHR) [advocacy website], which called the guidelines "an assault on medical ethics, the professional integrity of military health personnel, the Geneva Conventions, and on US military tradition and discipline." PHR fears that the guidelines do not provide adequate protection against health personnel sharing sensitive medical information with interrogators, including psychological and psychiatric information. PHR added that new policies issued last month by the American Psychiatric Association (APA) [official website] and World Medical Association (WMA) [official website] which prohibit mental health practitioners [WMA press release] from directly supporting individual interrogations [APA press release], and that international ethics guidelines and the American Medical Association [official website] expressly allow people to go on a hunger strike if they act under their own will. AP has more.

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Vatican family council assails same-sex marriage, abortion in new policy paper
Bernard Hibbitts on June 7, 2006 8:17 AM ET

[JURIST] A Vatican panel Tuesday condemned same-sex marriage [JURIST news archive] as a major threat to the family, along with abortion [JURIST news archive], contraception and in vitro fertilization. The Pontifical Council for the Family [official website; official backgrounder], founded by Pope John Paul II in 1981, issued a 57-page document titled "Family and Human Procreation," saying [press release] that "[t]he unitive act of man and woman cannot be separated from its connatural dimension, which is that of procreation and which makes responsible paternity and maternity possible."

The document, which appears to summarize rather than modify the church's traditional positions, is the first major statement on such issues during the pontificate of Pope Benedict XVI [official profile; BBC profile]. It has nonetheless already drawn fire from gay advocates and their parliamentary allies, who have traditionally been wary about what they regard as Vatican interventions in secular issues. AP has more.

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Gonzales defends FBI congressional office raid
Jaime Jansen on June 7, 2006 8:02 AM ET

[JURIST] US Attorney General Alberto Gonzales [official profile] called the May FBI raid of the congressional office [JURIST report] of Rep. William Jefferson (D-LA) [official website] an "unusual" but necessary step on Tuesday, comparing the office search to past searches of the homes and vehicles of other members of Congress. The US Department of Justice [official website] has consistently defended the search of Jefferson's office, which was pursuant to a search warrant obtained primarily based on an affidavit [PDF] depicting evidence of Jefferson accepting a $100,000 bribe from an FBI informant posing as a Nigerian government official. Gonzales explained that investigators had tried unsuccessfully for months to obtain the evidence seized in the office raid, but concluded that an office search was the only possible way to obtain the evidence.

Federal lawmakers, led by House Speaker Dennis Hastert (R-IL) [official website], from both political parties have condemned the search as unconstitutional, calling it a violation of separation of powers [press release; JURIST report] and prompting President Bush to temporarily seal the evidence seized [JURIST report] during the search while both sides cool off. Meanwhile, some Republican lawmakers have come to the defense [Orlando Sentinel report] of the FBI search, expressing concern that Hastert set a double standard and seeks to establish new independence as Republicans gear up for November's mid-term elections. AP has more.

 Op-ed: Searching Congress: A Fabricated Constitutional Crisis | Op-ed: Executive Power and Breathing Space for Liberty

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
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