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Legal news from Monday, September 25, 2006

Courts-martial ordered for Marines charged with Hamdania death
Joe Shaulis on September 25, 2006 4:20 PM ET

[JURIST] Three US Marines charged with murdering an unarmed Iraqi civilian [JURIST report] in April in Hamdania [JURIST news archive] will face courts-martial, the Marine Corps [official website] announced Monday. The decision follows preliminary hearings [JURIST report] for the three Marines, all of whom are based at Camp Pendleton, California: Pfc. John J. Jodka III, Cpl. Marshall L. Magincalda and Cpl. Jerry E. Shumate [JURIST reports]. Although prosecutors dropped some charges against the Marines, those remaining in addition to murder include murder, conspiracy, housebreaking and kidnapping [UCMJ text]. Earlier, military prosecutors said they would not seek the death penalty [JURIST reports] if the defendants are convicted.

Four other Marines and a Navy corpsman charged in connection with the death are awaiting preliminary hearings under Article 32 [JAG backgrounder; USMJ text] of the Uniform Code of Military Justice. On April 26, the eight suspects allegedly dragged the victim, Hashim Ibrahim Awad [Wikipedia profile], out of his home, shot him and then placed an AK-47 rifle and a shovel near his body to make him look as if he had been burying a roadside bomb. AP has more.

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Judiciary Committee leaders put brakes on military commissions bill
Joe Shaulis on September 25, 2006 3:41 PM ET

[JURIST] Pressure from the Bush administration and the congressional leadership to fast-track a military commissions bill [JURIST news archive] met bipartisan resistance Monday during a Senate Judiciary Committee hearing [committee materials]. Committee Chairman Arlen Specter (R-PA) [official website; JURIST news archive] called the habeas corpus provision of the draft legislation [PDF text] "inexplicable," echoing televised comments he made Sunday [JURIST report] suggesting that the provision violates Article 1, Section 9 [text] of the Constitution, which allows habeas writs to be suspended only "when in cases of rebellion or invasion the public safety may require it." The proposed Military Commissions Act of 2006, however, deprives the courts of habeas jurisdiction over detained alien enemy combatants, giving judicial recourse only to those actually charged by military commissions. "If the courts are not open to decide constitutional issues," Specter said today, "how is constitutionality going to be tested?"

The committee's ranking minority member, Sen. Patrick Leahy (D-VT) [official website], described the provision as "un-American." According to his prepared remarks [text], Leahy said:

This provision would perpetuate the indefinite detention of hundreds of individuals against whom the Government has brought no charges and presented no evidence, without any recourse to justice whatsoever. ...

Going forward, the bill departs even more radically from our most fundamental values. It would permit the President to detain indefinitely – even for life – any alien, whether in the United States or abroad, whether a foreign resident or a lawful permanent resident, without any meaningful opportunity for the alien to challenge his detention.
The only other Judiciary Committee member at the hearing, Sen. John Cornyn (R-TX) [official website], spoke in favor of the bill, saying it safeguards detainees' by providing annual status reviews and rights of appeal following trial. But Thomas Sullivan, a Chicago attorney representing 10 detainees at Guantanamo Bay [JURIST news archive], called those reviews "a sham." A range of rights groups, military lawyers and legal scholars have criticized the draft legislation [JURIST report], which emerged from a deal struck last week between top Senate Republicans and the White House. The New York Times has more.

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Israeli military court reverses decision freeing Palestinian lawmakers
Joe Shaulis on September 25, 2006 3:15 PM ET

[JURIST] An Israel Defense Forces [official website] court denied bail Monday to 18 Palestinian lawmakers on trial for charges of membership in a terrorist organization [JURIST report]. The ruling, postponed from last week, reverses an earlier military court decision that prosecutors appealed [JURIST reports]. In his opinion, Judge Col. Shaul Gorden wrote that the court had "no choice" but to order the defendants' continued detention because of their senior positions in the Hamas movement [CFR backgrounder], which Israel considers a terrorist group, even if they were not directly involved in terrorist activities and despite their status as democratically elected Palestinian officials.

The defendants, who were who were detained [JURIST report] following the Hamas capture of Israeli Cpl. Gilad Shalit [Wikipedia backgrounder] in Gaza in June, include Palestinian parliament speaker Aziz Dweik [official profile, in Arabic; JMCC profile] and a number of Palestinian cabinet members. Dweik criticized today's decision as "political." Haaretz has more. The Jerusalem Post has additional coverage.

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Europe head calls for EU enlargement halt pending constitutional progress
Jaime Jansen on September 25, 2006 2:34 PM ET

[JURIST] European Commission [official website] President Jose Manuel Barroso [official profile] suggested Monday that the EU temporarily halt membership enlargement [EC materials] after Bulgaria and Romania [EC profiles] join while the EU works to resolve institutional and constitutional problems. Though the Commission will likely announce on Tuesday that Bulgaria and Romania will be eligible to join the EU in January [Reuters report], Barroso's comments throw into question whether Croatia, Macedonia and Turkey [EC profiles] will be able to join, despite having already begun membership talks. Barroso stressed that the EU has a limited capacity to welcome new members without creating new rules and regulations for a larger bloc of countries to work together efficiently, but did express hope that Croatia will be able to join "as quickly as possible."

The current Nice Treaty [EC materials] requires that institutional changes be implemented once the bloc reaches 27 members, and the addition of Bulgaria and Romania will reach that number. The European constitution [JURIST news archive] has remained in limbo since voters in France and the Netherlands [JURIST reports] voted against it last year. BBC News has more. EUobserver has additional coverage.

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Thai military rulers may seek Thaksin extradition from UK
Bernard Hibbitts on September 25, 2006 2:10 PM ET

[JURIST] A spokesman for Thailand's new military leadership which seized power [JURIST report] in a bloodless coup last week has said that the new government wants to bring deposed Prime Minister Thaksin Shinawatra [BBC profile] to justice and could seek his extradition from the UK. Thaksin, a billionaire, maintains a residence in London and flew there from New York where he had been scheduled to address the 61st session of the UN General Assembly when the coup occurred. Major General Thawip Netniyom, speaking for the self-styled Council for Democratic Reform under Constitutional Monarchy, told the Times of London, "If we have the evidence that he is guilty of something or he has done something against the law, most probably we will send a letter to the British Government about it. If (we) prove ... someone has done something wrong, and we leave it, that means we are not doing our job." Thai officials have already ratcheted up their investigation of possible corruption in the Thaksin regime, with some 10 allegations being probed. Thawip nonetheless acknowledged that the coup itself had been illegal, using a simile drawn from his experience as head of the Thai military's information technology division: "It is against the law. If I say it's not against the law, I shouldn't be here...But sometimes, to break the deadlock, someone has to do something. Just like when your computer is hung and you cannot do anything about it, what you're going to do is push the reset button or unplug it, and that's the only way to solve it." The Times has more.

Meanwhile UN High Commissioner for Human Rights Louise Arbour called on the Thai military government Monday to restore fundamental freedoms in the country, saying in a statement [text] from Geneva that "The forcible and unconstitutional replacement of Thailand’s freely-elected Government on 19 September, the establishment of martial law, the abolition of the 1997 Constitution, the dissolution of Parliament and the Cabinet as well as the disbanding of the Constitutional Court, have raised important human rights concerns." Noting that "The various decrees issued by the CDRM restrict a number of basic human rights, such as the right to freedom of assembly, the right to freedom of opinion and expression, and freedom from arbitrary arrest and detention", she reminded the country's new leaders of Thailand's obligations under various international human rights instruments, including the International Covenant on Civil and Political Rights.

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Afghan women's rights advocate murdered, Taliban suspected
Jaime Jansen on September 25, 2006 1:59 PM ET

[JURIST] Afghanistan women's rights advocate and director of the Afghan Ministry of Women's Affairs in Kandahar [Wikipedia backgrounder] Safia Hana Jan was killed by armed gunmen in the southern Afghan province of Kandahar on Monday. Local officials launched an immediate investigation into the attack, presuming it was coordinated by the local Taliban [BBC backgrounder] insurgency in response to Hana Jan's public critiques of the Taliban. The United Nations Assistance Mission in Afghanistan (UNAMA) [official website] promptly called [press conference] Hana Jan's death a "senseless murder" of a woman working to ensure equality. Regional Taliban commander Mullah Sadullah claimed responsibility for Hana Jan's death in a phone call to AP, but there was no way to verify the claim.

Hana Jan death follows several other high-profile killings of officials, including the recent murder of the governor of Paktia [CNN report], a southeastern Afghan province. IRIN has more. AP has additional coverage.

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Federal judge certifies class of 'light' cigarette consumers in tobacco suit
Jaime Jansen on September 25, 2006 1:05 PM ET

[JURIST] New York US District Judge Jack Weinstein Monday certified [memorandum and order, PDF] a class action lawsuit for "light" cigarette smokers against tobacco companies accused of leading smokers to believe that light cigarettes are healthier than regular cigarettes. The class action, which includes anyone who has ever bought light cigarettes since they hit the market in the 1970s, alleges that tobacco companies used deceptive advertising tactics in response to growing health concerns over the risks of smoking cigarettes. Plaintiffs attorney Michael Hausfeld argued [CBS report] that more than 90 percent of the smokers who purchased light cigarettes instead of regular cigarettes did so because of health concerns, according to expert witnesses. Attorneys for the tobacco companies countered that determining the reasons for every light cigarette consumer would be impossible and therefore makes class certification impractical. Weinstein rejected the tobacco company arguments, saying that class certification was necessary to "justify the expensive and time-consuming pretrial and trial procedures." A trial is scheduled for January, though representatives of both main defendants, Philip Morris USA Inc. and R.J. Reynolds Tobacco Co. [corporate websites], have said they plan to appeal the class certification. AP has more. Reuters has additional coverage.

The certification follows a similar Illinois lawsuit alleging that Philip Morris defrauded customers by leading them to believe that light cigarettes presented less risk than regular ones. The Illinois Supreme Court [official website] said in May that it would not reconsider [JURIST report] its decision [text; JURIST report] ruling invalid a $10.1 billion judgment against Philip Morris because the US Federal Trade Commission [official website] regulations gave tobacco companies authority to denominate products as "light" or "low tar and nicotine" and that under the Illinois Consumer Fraud Act, companies cannot be held liable for behavior that has been specifically permitted by a regulatory body.

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China Communist Party fires top leader for corruption in pension scandal
Joshua Pantesco on September 25, 2006 10:20 AM ET

[JURIST] China's ruling Communist Party announced the firing of a top party leader on Monday for his involvement in a pension plan scandal [AP report]. Shanghai Municipal Committee secretary Chen Liangyu [People's Daily profile] has been under investigation since June for allegedly mishandling funds earmarked for social security accounts and for other corrupt practices.

Critics say the dismissal indicates that President Hu Jintao [People's Daily profile] is not only responding to calls from the general public to end corrupt practices but is consolidating power in the ruling party in anticipation of next year's party congress, where Hu may appoint several associates to top party positions. VOA has more. Xinhua has local coverage.

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ICTR begins genocide trial of former Rwandan prosecutor
Joshua Pantesco on September 25, 2006 10:02 AM ET

[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] Monday began the trial of a former deputy state prosecutor who later worked as an ICTR investigator under an alias by formally charging him with four counts [ICTR press release] of genocide, murder, extermination and other crimes against humanity. In the amended indictment [PDF text], Simeon Nchamihigo is accused of ordering another to kill a Tutsi victim by lighting a mattress on fire, and of ordering the same person to kill a Tutsi family by lighting their car on fire. Other allegations, contained in the amended indictment and the original indictment [PDF text] filed in 2001, allege that Nchamihigo ordered the deaths of other Tutsis, and drafted a list of other Tutsis and opposition leaders to be murdered. The main difference between the original indictment and the amended version is that the ICTR will not be charging Nchamihigo with violations of the Geneva Conventions.

Last week, the court settled [JURIST report] a dispute with the Rwandan government [JURIST report] over the hiring of employees having connections with the 1994 genocide [BBC backgrounder] by agreeing to run more background checks. Nchamihigo was taken into custody by court security staff in 2001 while working as an investigator [Dowjones report] for the legal team defending former Rwanda army officer Samuel Imanishimwe. Reuters has more.

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Saddam ejected from courtroom again as defense boycotts new judge
Joshua Pantesco on September 25, 2006 9:47 AM ET

[JURIST] Saddam Hussein was thrown out of court again Monday for failing to observe courtroom discipline in his genocide trial [JURIST news archive], his second ejection in as many sessions. The ousted Iraqi president was represented by eight court-appointed lawyers as his regular defense team carried out their threat to boycott [JURIST report] the proceeding in protest at the behavior of new presiding judge Mohammed Oreibi al-Khalifa, a Kurd who threw Hussein out of court [JURIST report] when he took over the trial last week. The original chief judge was replaced [JURIST report] by the government after he said in court Hussein was not a dictator [JURIST report]. During Monday's session, three witnesses testified for the prosecution, one reporting incidents of rape, abuse, and poor health conditions at Kurdish concentration camps, and another testifying that he witnessed the Iraqi army bomb his village with chemical weapons.

Hussein is being tried for his role in the deaths of 180,000 Kurds [JURIST report], mostly civilians, in the 1980s. Reuters has more.

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Zuma ex-associate appeals South Africa corruption verdict
Joshua Pantesco on September 25, 2006 9:00 AM ET

[JURIST] Lawyers for a former associate of former South African Deputy President Jacob Zuma [party profile] Monday began their appeal of a corruption conviction [JURIST report] against businessman Schabir Shaik that could help to clear Zuma's name and help to rehabilitate him as a potential presidential candidate. President Thabo Mbeki fired [JURIST report] Zuma from his position last year when Shaik was found guilty of corruption and fraud. On appeal, Shaik is arguing that he did not discuss with his tax auditors faulty write-offs of loans, some of which were allegedly made to Zuma. Zuma has indicated repeatedly that he intends to run against Mbeki [BBC profile] in the 2009 presidential election.

In June, the African National Congress [party website] reinstated Zuma to his deputy president position within the party after he was acquitted on rape charges [JURIST reports]. On Wednesday, a high court judge tossed the corruption charges brought against Zuma himself [JURIST report], saying prosecutors had failed to follow proper procedures, though the charges may be brought again in the future. On Sunday, South Africa's Sunday Times reported that prosecutors are formulating new charges against Zuma, but that if Shaik wins his appeal this week, new charges against Zuma may not be brought. AP has more. The Sunday Times has local coverage.

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Jordan parliament amends mosque bill to require permission for preaching
Joshua Pantesco on September 25, 2006 8:45 AM ET

[JURIST] Jordan's appointed Senate, the upper house of the National Assembly [official website], amended a bill regulating mosques Sunday so as to require preachers to obtain written government permission before being allowed to lead services or teach the Quran. Unauthorized preachers would face up to a month in prison and a fine. The measure was presented as means to curb extremism and incitement to violence, although opponents say the changes infringe religious freedom in the country and were made to satisfy US and Israeli demands. The lower house approved the previous version of the bill three weeks ago. Jordan's King Abdullah is expect to sign the bill later this year.

In August, the National Assembly approved legislation criminalizing a wide range of behavior as acts of terror [JURIST report], including financing, interacting with or recruiting for any terrorist group, and possessing, making, or transporting any material that can be used to produce chemical weapons. The law gives military courts sole jurisdiction over terrorism claims, and permits officials to conduct surveillance of terrorism suspects and bar suspects from leaving the country. The bill is Jordan's first attempt to address terrorism [JURIST report] since the deadly Amman hotel bomb [CTV report] that killed 57 people in 2005. AP has more.

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Specter questions constitutionality of habeas restriction in detainee bill
Joshua Pantesco on September 25, 2006 7:44 AM ET

[JURIST] US Senate Judiciary Committee Chairman Senator Arlen Specter (R-PA) [JURIST news archive] told [transcript] CNN's Late Edition program Sunday that he believes the habeas corpus provision of the latest draft [text, PDF] of the military commissions bill [JURIST news archive] based on an agreement [JURIST report] Thursday between Senate and White House negotiators may violate the US Constitution. Section 6 of the Military Commissions Act of 2006 deprives the courts of habeas jurisdiction over detained alien enemy combatants, giving judicial recourse only to those actually charged by military commissions. Specter noted that habeas can only be constitutionally withdrawn in the face of rebellion or invasion. Article 1 [text], Section 9 of the US Constitution reads in part, "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Specter has scheduled a committee hearing on the issue for Monday. AP has more.

Senator John McCain (R-NV) [JURIST news archive] meanwhile told NBC's Meet the Press program Sunday that other provisions of the revised bill that he helped negotiate with the White House would bar the US from engaging in at least three specific controversial interrogation techniques: extreme sleep deprivation, forced hypothermia and "waterboarding," where the victim experiences the sensation of drowning. The Washington Post has more.

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Senate Judiciary Committee puts reporters shield law on hold
Joshua Pantesco on September 25, 2006 7:15 AM ET

[JURIST] A proposed federal shield law for journalists is on hold after the US Senate Judiciary Committee [official website] Friday postponed further consideration of the bill in the wake of strong opposition [JURIST report] from Justice Department officials voiced in a hearing Thursday. Deputy Attorney General Paul McNulty [official profile] argued that the Free Flow of Information Act of 2006 [S 2831 summary] would impose an onerous burden on federal prosecutors seeking to compel journalists to reveal their sources. The draft bill states, in part, that a federal prosecutor may not compel the disclosure of "information identifying a source who provided information under a promise or agreement of confidentiality made by the journalist while acting in a professional newsgathering capacity" unless it falls under an exception. McNulty argued in particular that the bill's exception for national security interests required courts to balance those against the public's right to know, a test that courts are ill-equipped to apply. The national security exception, as currently drafted, reads in part:

A journalist...has no privilege against disclosure of any records, communication data, documents...sought by an attorney for the United States...if a court has...determined by clear and convincing evidence, that...disclosure of information identifying the source is necessary to prevent an act of terrorism or to prevent significant and actual harm to the national security, and the value of the information that would be disclosed clearly outweighs the harm to the public interest and the free flow of information that would be caused by compelling the disclosure...
The law is unlikely to be taken up again by the Judiciary Committee until after the fall elections. The measure was introduced [press release] by Judiciary Committee Chairman Senator Arlen Specter and several colleagues in May, partially in response to the controversial 85-day jailing of New York Times journalist Judith Miller [JURIST news archive] after she refused to reveal a source to the grand jury investigating the leak of CIA operative Valerie Plame's identity [JURIST news archive]. The Washington Post has more.

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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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