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Legal news from Wednesday, August 9, 2006




Australia House set to approve border bill limiting asylum seekers to offshore camps
Joe Shaulis on August 9, 2006 8:29 PM ET

[JURIST] A bill that would require asylum seekers arriving in Australia [JURIST news archive] by boat to be processed in offshore camps is expected to be approved by the country's House of Representatives [official website] Thursday, despite opposition from within the governing Liberal Party [party website]. Prime Minister John Howard [official profile] contends that the restrictions on immigration [JURIST news archive] protect Australia's borders, while critics accuse him of catering to Indonesia [JURIST news archive], which temporarily recalled its ambassador to Canberra after Australia gave visas to more than 40 Indonesian asylum seekers [BBC report] from Indonesia's Papua province earlier this year. Responding to reporters' questions Wednesday, Howard said [official transcript]:

A lot of changes have been made to accommodate the concerns of some colleagues, but in the end, as happens in any democratic party, the overwhelming majority view must be respected, and that is why we are going ahead with the legislation. The Australian public wants strong, border protection legislation, that is what this is all about, and that is why the Government is going ahead with the legislation.
During Wednesday's debate in the House [ABC Radio report], one Liberal Party member, Petro Georgiou [official profile], described the Migration Amendment (Designated Unauthorised Arrivals) Bill [parliamentary materials and text] as "the most profoundly disturbing piece of legislation I've encountered since becoming a Member of Parliament."

Nevertheless, the bill is likely to advance to the Senate [official website], where a vote is scheduled for next week. The Liberal Party has a one-vote majority in the upper chamber. BBC News has more. The Sydney Morning Herald has local coverage.





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Gonzales announces reform plans for US immigration courts
Jeannie Shawl on August 9, 2006 4:19 PM ET

[JURIST] US Attorney General Alberto Gonzales [official website] on Wednesday announced that the Department of Justice (DOJ) [official website] will implement new rules to improve the performance of federal immigration courts [DOJ listing] and the Board of Immigration Appeals [DOJ backgrounder]. The Executive Office of Immigration Review (EOIR) [official website], the governmental agency charged with adjudicating immigration cases, will be given authority to periodically review the work of all immigration judges, and will develop an examination to test all immigration judges on their familiarity with immigration law. To combat petitioner misconduct during immigration hearings, the EOIR will also draft new rules providing the immigration courts with the authority to sanction those who make false statements before the immigration courts and engage in otherwise frivolous behavior.

Gonzales announced the reforms following the conclusion of a comprehensive review of the immigration court system, which he initiated [JURIST report] in January 2006 due to the poor quality of work and discourteous conduct of an increasing number of the judges employed by the Justice Department. The DOJ has a press release on the planned reforms.






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UK MP quits defense post, suggests US-Israel bomb transshipments illegal
Joshua Pantesco on August 9, 2006 3:12 PM ET

[JURIST] UK Labour Party MP Jim Sheridan [official website] resigned Wednesday from his government position as Parliamentary Private Secretary of the Defense Team, citing the Blair administration's reluctance to demand an immediate end to the ongoing Middle East conflict [JURIST news archive] and suggesting that the government's decision to allow US military flights transporting weapons to Israel [JURIST report] to refuel at UK airports en route to Israel may violate international human rights law. Earlier this month former UK Foreign Secretary and now Commons Leader Jack Straw spoke out against "disproportionate" Israeli strikes in Lebanon [BBC report] and there have been other signs of internal discontent [Telegraph report] with official British government policy on the conflict. Over 100 UK MPs, mostly Labor party members, are preparing to formally demand that Straw recall parliament [Guardian report] from an 11-week summer recess. BBC News has more.

Last week, British anti-war campaigners unveiled a legal campaign opposing UK complicity [JURIST report] in the violence. The activists may file lawsuits arguing that by allowing the flights, UK authorities are facilitating attacks on civilian targets in Lebanon [JURIST report] and are therefore involved in war crimes, in violation of the European Convention on Human Rights [text, PDF], the Geneva Conventions [ICRC materials] and the International Criminal Court Act 2001 [text].






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Mexico judges begin partial recount of presidential ballots as protests continue
Joshua Pantesco on August 9, 2006 2:09 PM ET

[JURIST] Two hundred Mexican judges on Wednesday began a partial recount of ballots cast in the disputed July 2 presidential elections [JURIST report] as supporters of leftist presidential candidate Andres Manuel Lopez Obrador [campaign website, in Spanish; Wikipedia profile] continued to stage protests [JURIST report] in Mexico City. The Federal Electoral Tribunal [official website, in Spanish] on Saturday decided not to hold a full recount [JURIST report], opting instead to recount only nine percent of ballots.

Lopez Obrador has pledged to continue peaceful demonstrations [JURIST report] until the tribunal orders a recount of all 41 million votes cast. Protesters so far have blocked entrances to banks and other businesses, effectively shutting down the main central square in Mexico City, and the government has increased security at Mexico City international airport, power plants and oil refineries. Last week, the Mexican interior minister criticized Lopez Obrador and his supporters [JURIST report] for setting up an "illegal blockade" that brought parts of the capital to a standstill. According to the official results [JURIST report], Lopez Obrador lost the election by about 220,000 votes to Felipe Calderon [campaign website, in Spanish; Wikipedia profile]. EFE News has more.






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New US Coast Guard rules will allow religious headcoverings
Jaime Jansen on August 9, 2006 1:56 PM ET

[JURIST] New service regulations will allow US Coast Guard [official website] members to wear religious head coverings [JURIST news archives] under their uniform head covers, according to Coast Guard officials quoted by AP Wednesday. The new regulations have already taken effect verbally, but must still be formally adopted. The Coast Guard, which falls under the domain of the US Department of Homeland Security [official website], will allow religious headcoverings that do not bear writing, pictures, symbols or bright colors, and will exclude Sikh turbans [JURIST news archive].

Both federal and state lawmakers called for the changes last year when Coast Guard regulations forced a Hasidic Jew to either remove his skullcap or not serve. Although the Coast Guard is considered one of the five branches of the US Armed Forces, its status as a DHS organization prevented members of the Coast Guard from wearing religious headcoverings allowed under Department of Defense [official website] regulations for the other four branches of the military. AP has more. The New York Times has additional coverage.






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Italy court mulling possible trial of US soldier for intelligence agent's death
Jaime Jansen on August 9, 2006 1:31 PM ET

[JURIST] An Italian court in Rome will consider whether to try US Army Specialist Mario Lozano [Wikipedia profile] this November in connection with the death of Italian intelligence agent Nicola Calipari [BBC profile] at an Iraqi checkpoint in March 2005, according to a court source Wednesday. Italian prosecutors requested an indictment in June after investigators concluded their probe [JURIST reports] into Calipari's death, finding Lozano responsible. If the court chooses to indict Lozano for manslaughter and attempted double homicide, as prosecutors want, Lozano will almost certainly decline to comply and will be tried in absentia.

Calipari was shot to death in 2005 while driving to the Baghdad airport after securing the release of Italian journalist Giuliana Sgrena from Iraqi kidnappers. A second Italian agent, Andrea Carpani, was also wounded in the shooting by US soldiers that perceived the car as insurgents speeding through a security checkpoint. US and Italian officials have failed to agree [JURIST report] on details surrounding Calipari's death. A US investigation [JURIST report] into the incident cleared US soldiers of any wrongdoing but an initial Italian probe [JURIST report], while also concluding that the killing was accidental, found that there were serious miscommunications among US officials in Iraq, and confusion about the rules of engagement for checkpoints. Reuters has more.






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Ethiopia ratifies nuclear test-ban treaty as US, China, Iran and Israel remain holdouts
Joshua Pantesco on August 9, 2006 1:31 PM ET

[JURIST] Ethiopia [JURIST news archive] on Tuesday submitted its ratification [press release] of the Comprehensive Nuclear Test-Ban Treaty (CTBT) [text; VRS backgrounder, PDF] to the UN Secretary-General. The CTBT bans any nuclear explosion, for testing purposes or otherwise, and was adopted by the UN General Assembly in 1996. Thirty-four of the 44 signatories possessing nuclear research and power capabilities at that time have ratified the treaty, and the treaty requires ratification from all those signatory nations to enter into force.

A total of 176 states worldwide have signed the treaty, so far ratified by 135. Among the key holdouts are the United States, China, Egypt, India, Indonesia, Iran, and Israel. In January, the US boycotted a UN conference [JURIST report] designed to encourage the then-11 nuclear holdouts, who now number 10, to sign the treaty. FAS has more, via Secrecy News.






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Activists condemn Iran for banning rights group
Jaime Jansen on August 9, 2006 12:47 PM ET

[JURIST] Human Rights Watch [advocacy website] denounced Iran [press release] on Wednesday for threatening to prosecute the Iranian Center for Defense of Human Rights (CDHR) [Wikipedia backgrounder], a human rights group based in Tehran founded by 2003 Nobel peace laureate Shirin Ebadi. Last week, the Iranian Interior Ministry [official website] banned the group, calling it illegal because it did not have a proper permit. CDHR was created four years ago by six lawyers and works to promote the rights of prisoners of conscience and dissidents in Iran, but the government has been critical of the rights advocate and has promised to prosecute any further activities by the group. Ebadi said the group has applied for a permit, which was denied with no explanation, and further contends that the Iranian constitution [text] does not mandate permits for "non-governmental organizations that observe the law and do not disrupt public safety."

One of the group's members, Abdolfattah Soltani [Amnesty International appeal; Wikipedia profile], was sentenced to five years in prison [JURIST report] last month for disclosing confidential information and engaging in propaganda against the regime despite never having stood trial for the charges against him. The center has also represented the family of Canadian-Iranian photographer Zahra Kazemi [CBC backgrounder; JURIST news archive], who died in Iranian custody in July 2003. Ebadi said her group plans to fight the ministry's decision using all available legal options. UPI has more.






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San Diego violated securities laws with under-funded pensions: audit
Joshua Pantesco on August 9, 2006 12:27 PM ET

[JURIST] San Diego city officials and management [city website] broke federal securities laws by failing to fulfill their fiduciary duties in administering the city's pension fund for police officers, firefighters, and other public officials, according to an independent audit presented to City Council [recorded video of Council session} on Tuesday. The Final Report [materials] of the investigation, led by former Securities and Exchange Commission (SEC) Chairman Arthur Levitt [official profile], blames city officials for deliberately under-funding city pensions, leading to a current deficit of $1.4 billion. Specifically, the audit found that City Council acted illegally in 1996 and 2002 in voting to under-fund the pensions, and that other city officials made misleading statements to the public regarding funding shortfalls, used pension assets to fund health benefits, and made false statements on financial prospectives. The audit recommended that an independent monitor supervise the San Diego pension system and report back to the SEC, and that city officials be required to personally certify the accuracy of pension reports, a requirement that the Sarbanes-Oxley Act [PDF text; SEC materials] imposed on corporations in the wake of the Enron scandal [JURIST news archive].

The report also criticized outside consultants hired by San Diego to administer the pension plan, including the law firm Vinson & Elkins [firm website], for failing to fully investigate problems with the pension system. On Tuesday, San Diego filed suit against Vinson & Elkins [law.com report], alleging breach of contract, breach of fiduciary duty and professional negligence and requesting $10 million in damages. The New York Times has more. The San Diego Union-Tribune has local coverage.






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UN rights council to hold special session on Lebanon conflict
Jaime Jansen on August 9, 2006 12:16 PM ET

[JURIST] The UN Human Rights Council [official website] announced Wednesday that it will hold an emergency session on Friday to discuss the ongoing Middle East conflict [JURIST news archive] and its worsening impact on Lebanese citizens. Responding to a special request from Tunisia on behalf of the UN Group of Arab States and the Organization of the Islamic Conference [advocacy website], the Council decided [press release, DOC] to immediately convene a special session "to consider and take action on the gross human rights violations by Israel in Lebanon," including an Israeli airstrike on the Lebanese village of Qana [JURIST report] that killed at least civilians according to updated counts.

On Monday, the Council's Sub-Commission on the Protection and Promotion of Human Rights [official website] denounced [press release; JURIST report] the "massive denial of human rights" in the ongoing conflict in Lebanon and called on the UN Security Council [official website] to work toward a permanent solution in the volatile area. The UN News Centre has more.






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US military arrests four Iraqis in reporter kidnapping
Joshua Pantesco on August 9, 2006 11:58 AM ET

[JURIST] The US military has arrested four Iraqi members of an insurgent kidnapping cell [MNF-Iraq news report] in connection with the kidnapping of Christian Science Monitor reporter Jill Carroll [CNN profile]. Carroll was working in Iraq when she was kidnapped on January 7 [CS Monitor report] and released on March 30 [Washington Post report] of this year. A US official said the arrests were made one month ago in the Anbar province west of Baghdad. Carroll's kidnappers demanded that the US release all female detainees [JURIST report] in their custody. A number of women detainees were subsequently released [JURIST report], though US military officials insisted that the release was a result of routine procedures and had no links to Carroll's kidnapping.

On the Christian Science Monitor's Jill Carroll update blog Editor Richard Bergenheim said:

Jill Carroll and her Monitor colleagues are very grateful for all of the efforts the US government made to secure Jill's freedom after she was held against her will for 82 days. Like reporters everywhere, we are reassured to hear that several of those believed to have held Jill have been apprehended. The daily threat of kidnapping in Iraq remains acute for all. Everything possible needs to be done to relieve Iraqis and others of this scourge.
AP has more.





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Serbia calls for prosecution of Bosnian commander depicted in 'war crimes' video
Joshua Pantesco on August 9, 2006 11:23 AM ET

[JURIST] The Serbian government has called for the prosecution [statement] of Bosnian military officer Atif Dudakovic after a Serbian television station broadcast a video Tuesday that allegedly shows Dudakovic ordering his troops to burn a Serb village in 1995. The Dudakovic video follows last week's broadcast of a video that allegedly shows the unprovoked murder of a Serb civilian. The amateur videos were shot during Operation Storm [Wikipedia backgrounder], when Bosnian and Croat soldiers recaptured parts of Croatia that had been claimed by Serbs. Dudakovic proclaimed his innocence to reporters on Tuesday, saying if war crimes were committed, they were not authorized by him.

Serbia's foreign minister on Tuesday called on the Serbian population to come forward with any video footage [AFP report] that may assist in the prosecution of war crimes by either Bosnian prosecutors or the International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website]. Historically, Serbs have been skeptical of the ICTY, as many Serbs feel that the ICTY has ignored allegations of atrocities committed against Serbs. AP has more. BBC News has additional coverage.






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Indonesia appeals court upholds AG decision to drop case against ex-president Suharto
Joshua Pantesco on August 9, 2006 11:10 AM ET

[JURIST] The Jakarta Court of Appeal has ruled that Indonesian Attorney General Abdul Rahman Saleh was correct to drop a corruption case against former President Suharto [CNN profile], citing Suharto's inability to speak or write due to permanent brain damage [JURIST report]. Saleh appealed a lower court ruling [JURIST report] in a lawsuit filed by several human rights groups [JURIST report]. The appeals court ruling upholding the case's closure was issued August 1 but was not made public until Wednesday.

Suharto, ousted from power in 1998 amid violent protests against his three-decade dictatorship of Indonesia [JURIST news archive], was charged with misusing more than half a billion US dollars, including money from charitable foundations that he established. Saleh dropped charges against Suharto [JURIST report] in April. AFP has more. The Jakarta Post has local coverage.






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US military prosecutor dismisses combat stress excuse in Mahmudiya hearing
Jaime Jansen on August 9, 2006 10:25 AM ET

[JURIST] Captain Alex Pickands, a US military lawyer prosecuting four US Army soldiers [JURIST report] for the March 12 rape of a 14-year old Iraqi girl and the murder of the girl and her family in Mahmudiya [JURIST news archive], told a military panel in Baghdad during closing arguments on Tuesday that combat stress had nothing to do with the cold-blooded rape and murder the four defendants allegedly committed. Earlier in Tuesday's Article 32 hearing [Navy JAG backgrounder], Pfc. Justin Cross told the panel that combat stress "crushed" troop morale in Mahmudiya [JURIST report] because the troops had a constant fear of death in the notoriously dangerous region south of Baghdad. On Monday, the panel heard testimony [JURIST report] from military investigator Benjamin Bierce, who told the court that he took a sworn statement from one of the defendants saying that former soldier Steven Green raped and shot Abeer Qassim al-Janabi after he shot and killed three of her family members. The hearing, which began on Sunday [JURIST report], is expected to conclude Wednesday.

Pfc. Jesse Spielman, Spc. James Barker, Sgt. Paul Cortez and Pfc. Bryan Howard have been charged with rape and murder, while Sgt. Anthony Yribe has been charged with dereliction of duty for failing to report the incident and making false statements about the incident. Lawyers representing the four core defendants demanded a new hearing Tuesday, arguing that Yribe's lawyer asked incriminating questions. Green, who was discharged from the Army before the allegations arose, has pleaded not guilty to charges [JURIST reports] of rape and murder in the US District Court for the District of Kentucky [official website]. Green's arraignment has been delayed [JURIST report] to avoid complications with evidence used in the investigation [JURIST report] into the five soldiers still in Iraq. Reuters has more. BBC News has additional coverage.






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Federal judge delays wiretapping suit pending DOJ state secrets appeal
Jaime Jansen on August 9, 2006 9:48 AM ET

[JURIST] US District Judge Vaughn Walker [official profile] of the Northern District of California on Tuesday temporarily stayed a class action lawsuit [EFF case backgrounder; JURIST report] brought by the Electronic Frontier Foundation against AT&T, pending the appeal [petition, PDF] of his earlier decision [JURIST report] allowing the case to move forward. The EFF lawsuit alleges that AT&T violated citizens' rights to privacy and several federal statutes when it allowed the NSA to use its infrastructure to wiretap US citizens as part of the Bush administration's domestic surveillance program [JURIST news archive] and the US Justice Department has filed a Statement of Interest [PDF] in the case. Last week, the DOJ said it would appeal the Walker's decision [JURIST report], arguing that the lawsuit could expose state secrets and threaten national security. In July, Walker ruled [order, PDF] that the broad media coverage of the surveillance program had neutralized any danger of disclosing state secrets, and allowed the lawsuit to move forward.

Walker's ruling was the first in several federal lawsuits to go against the government's attempts to invoke the state secrets privilege for the surveillance program. In separate litigation, government attorneys have asked that twenty coordinated lawsuits [JURIST report] brought by the American Civil Liberties Union [advocacy website] be consolidated [JURIST report] by the Judicial Panel on Multidistrict Litigation [official website] so that the government can invoke the state secrets privilege and have all the cases dismissed; plaintiffs have asked to have Walker in San Francisco handle the cases. Reuters has more.






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ABA condemns Bush 'misuse' of signing statements
Jaime Jansen on August 9, 2006 9:02 AM ET

[JURIST] The American Bar Association [official website] approved a resolution [press release] Tuesday condemning President Bush for his "misuse" of bill signing statements [1993 DOJ backgrounder] to bypass particular provisions of a bill that the president considers unconstitutional or a risk to national security. Last month, an ABA task force released a report [PDF text; JURIST report] with recommendations on signing statements, saying in an accompanying press release [text] that President Bush's practice of attaching signing statements to new laws "undermine[s] the rule of law and our constitutional system of separation of powers."

The ABA resolution "urges Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements" that are issued. Sen. Arlen Specter (R-PA) [official website] introduced legislation [S 3731 summary; JURIST report] in July that would give Congress the power to bring lawsuits in federal court [JURIST report] to challenge presidential bill signing statements that seem unconstitutional. According to the ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine [ABA materials], Bush has attached signing statements to more than 800 bills during his tenure, more than all other presidents combined. Bush's veto of the stem cell research bill [JURIST report] last month marked the first veto of his presidency. White House spokesman Tony Snow has defended Bush's use of signing statements [press briefing transcript], saying Bush writes in small questions about constitutionality and never states that the administration will not enact the law. AP has more.






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Proposed War Crimes Act changes would avoid liability for degrading treatment
Jaime Jansen on August 9, 2006 8:01 AM ET

[JURIST] Proposed amendments drafted by the Bush administration to revise the War Crimes Act [text] would protect CIA officers, former military personnel and political appointees from prosecution for humiliating and degrading treatment of wartime detainees, according to a report in Wednesday's Washington Post. The 1996 War Crimes Act makes it a felony to violate the Geneva Conventions [ICRC materials], including the Common Article 3 [text] prohibition on cruel and inhumane treatment, and as currently written potentially allows those not subject to the Uniform Code of Military Justice [text] to be held responsible for war crimes. To date, however, there have been no prosecutions under the War Crimes Act.

After consulting with Republican lawmakers [JURIST report] on the subject, US Attorney General Alberto Gonzales [official profile] called for amendments [JURIST report] to the legislation last week during a Senate Armed Services Committee hearing [committee materials; JURIST report] on the future of military commissions [JURIST news archive]. Gonzales said that revisions were necessary to clearly define acts prohibited under the War Crimes Act so that US interrogators do not unknowingly subject themselves to criminal charges.

According to the draft obtained by the Post, ten specific categories of illegal acts against detainees, including torture, murder, rape and hostage taking, would still be subject to prosecution, but not humiliating acts such as forced nakedness, the use of dog leashes and forcing male detainees to wear women's underwear, akin to acts seen at the Abu Ghraib prison [JURIST news archive] in Iraq.

Notwithstanding any changes to the War Crimes Act, serving members of the US armed forces could still face military prosecution for alleged abuses under the UCMJ. Fearing liability of US personnel in a court it cannot control, the US has declined to submit [AMICC backgrounder] to the jurisdiction of the International Criminal Court [official website], which was established to prosecute war crimes, genocide and crimes against humanity. The US has also vigorously pursued Article 98 agreements [DS materials] to prevent other nations from surrendering US citizens to the ICC. The Washington Post has more.
ALSO ON JURIST

 Op-ed: Narrowing US War Crimes Law: Having Our Cake and Eating It Too?






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