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Legal news from Saturday, September 30, 2006

Australia AG says Hicks Guantanamo trial unlikely to start this year
Joshua Pantesco on September 30, 2006 4:22 PM ET

[JURIST] Australian Attorney General Philip Ruddock [official website], speaking with reporters [transcript] Friday after meeting with US Attorney General Alberto Gonzales and other American officials about the case of Australian Guantanamo detainee David Hicks [JURIST news archive], said it is unlikely that Hicks will face trial this year. The US has promised that Hicks will be among the first detainees tried under the new military commissions framework just established by Congress [JURIST report] but implementation of the legislation could take some time.

Ruddock said:

I've sought assurances and have been given them that in relation to Mr Hicks, in particular, all of the issues that we had raised over time dealing with the nature of evidence that will be produced, the fairness of the trial process, the question of representation would be dealt with in accordance with the assurances that had been provided before.
Ruddock also said the bill allows a military commission decision to be appealed to a civilian judge, though Guantanamo Bay detainees will not have the same habeas corpus rights guaranteed to prisoners held in other US detention facilities. In August, Ruddock said the US promised not to seek the death penalty against Hicks [JURIST report] in connection with his alleged involvement with Taliban forces in Afghanistan. The Australian has more.

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Senate ratifies US-UK extradition treaty
Joshua Pantesco on September 30, 2006 3:18 PM ET

[JURIST] The US Senate early Saturday morning unanimously ratified [US Embassy London press release] the US-UK Extradition Treaty [PDF text; State Department backgrounder; JURIST news archive] that was negotiated in 2003 and statutorily incorporated into UK law [Extradition Act text] the same year. Earlier this year it was controversially used as the basis for extraditing three UK NatWest backers to the US [JURIST report] to face charges in the Enron fraud scandal; a British minister was subsequently dispatched to the US [JURIST report] to press for American ratification so the extradition arrangements for the two countries would be aligned.

Opponents on both sides of the Atlantic have criticized the evidentiary standard required by the treaty for an extradition request to be approved. The treaty requires only a showing of prima facie evidence by the requesting country, a lower evidentiary standard than probable cause. In July, UK lawmakers pushed for the treaty to be altered [JURIST report] to include a presumption that British citizens accused of committing crimes in the UK should be tried there. Reuters has more.

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ICTY chief prosecutor suggests EU should finance war crimes court
Joshua Pantesco on September 30, 2006 2:48 PM ET

[JURIST] Chief prosecutor for the International Criminal Tribunal for the former Yugoslavia [official website; JURIST news archive] Carla Del Ponte [official profile] challenged the European Union Friday to fund the war crimes court if UN monies runs dry before the ICTY is able to bring to trial the two most-wanted war criminals indicted by the court, former Bosnian Serb leaders Ratko Mladic [ICTY case backgrounder; JURIST news archive] and Radovan Karadzic [ICTY case backgrounder; BBC profile]. The UN has requested that the ICTY, which has operated for 13 years and used over $300 million in UN money, begin all trials before 2008. Del Ponte said in the speech [transcript] in Helsinki:

If the United Nations is not willing anymore to fund our Tribunal so that it can complete successfully its mandate, the Europeans will have a tough dilemma: either to fill the gap and make sure the ICTY receives the necessary resources, or accept that, because of the lack of cooperation of Serbia and the opposition of Russia and China, thousands of Muslim victims in Europe will never see their legitimate needs for justice satisfied. Can the European Union tolerate that 2 persons accused of genocide are being sheltered by a candidate country? Can European accept that these alleged genocidaires may not face trial because there will be no court to try them? This would bear a severe blow at our European values, based on the rule of law. Unfortunately, they seem to be less and less shared in the post-9/11th world.
Mladic, former head of the Bosnian Serb army, has escaped capture for years and his fugitive status has been a sticking point in Serbia's membership negotiations with the European Union [JURIST report; EU materials]. Mladic is believed to be hiding in Serbia and in June Del Ponte said she would ask the UN Security Council for direct authority to arrest Mladic and Karadzic [JURIST report], though she has apparently not done so. The US has cut off financial aid to Serbia [JURIST report] due to its failure to arrest Mladic. In August, Del Ponte said that Mladic should be on trial [JURIST report] along with a group of seven Bosnian Serb military and paramilitary officers charged with massacring 8,000 Muslims in Srebrenica [BBC backgrounder; JURIST news archive] in 1995. AP has more.

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House passes property rights bill
Joshua Pantesco on September 30, 2006 2:09 PM ET

[JURIST] The US House of Representatives passed a property rights bill Friday night that its proponents say will provide easier access to federal courts for landowners seeking to challenge governmental actions under the Takings Clause [text] of the Fifth Amendment. The Private Property Rights Implementation Act of 2006 [HR 4772 text, PDF], which the House initially failed to pass [JURIST report] on Tuesday under a special rules suspension procedure [CRS backgrounder] usually reserved for uncontroversial bills, went to the Senate following the 231-181 vote [roll call].

Opponents say the legislation is troubling because large developers with significant financial resources who are unhappy with unfavorable local zoning decisions will be able to strongarm localities who cannot afford to litigate every zoning decision in federal courts. Bill sponsor Rep. Steve Chabot (R-OH) [official website] says the proposed legislation is a reaction to the Supreme Court decision in San Remo Hotel v. San Francisco [Duke Law case backgrounder; opinion text, PDF], where the Court held that federal courts must give full faith and credit to final decisions rendered by state courts made solely under state law where litigants also brought federal Takings claims. A cost estimate [PDF text] released by the Congressional Budget Office suggests that such legislation would increase both the caseload of the federal courts and the number of claims brought against the United States government. No Senate action was expected on the measure prior to adjournment. The Washington Times has more. The Washington Post has additional coverage.

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Senate approves US-Mexico border fence bill
Alexis Unkovic on September 30, 2006 12:24 PM ET

[JURIST] The US Senate [official website] passed the Secure Fence Act of 2006 [HR 6061 text, PDF] Friday by a vote of 80-19 [roll call], authorizing the construction of a 700-mile fence along the US-Mexico border [JURIST news archive]. President Bush is expected to sign the measure, designed to curb illegal immigration [JURIST news archive] into the United States. A key provision of the bill dictates that the US Department of Homeland Security [official website] must have "operational control" over US borders within 18 months in an effort to keep illegal substances and illegal immigrants from entering the US, while also providing for a study [JURIST report] to decide whether the government should also construct a fence along the Canadian border. A separate measure will fund construction and maintenance of the fence.

The US House of Representatives [official website] passed [JURIST report] the border fence bill by a vote of 283-138 [roll call] September 15. The Mexican government has already expressed its opposition [JURIST report] to the scheme. AP has more. The Boston Globe has additional coverage.

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Wireless providers back pretexting ban at House hearing
Alexis Unkovic on September 30, 2006 11:10 AM ET

[JURIST] Lawyers from several of the top US wireless telephone providers testified [recorded video] Friday at a hearing [agenda] before the Oversight and Investigations subcommittee of the US House Energy and Commerce Committee [official website] that they would support legislation to ban pretexting [FTC backgrounder], the practice whereby an individual poses as another customer to obtain his or her personal phone information. Congress has yet to agree on a comprehensive bill to ban the practice, and committee members complained Friday that the rest of Congress had failed to take action on the Prevention of Fraudulent Access to Phone Records Act [HR 4943 text] it passed in March. AP has more.

The same House subcommittee also held [JURIST report] a hearing [agenda] Thursday to address the telephone spying scandal that has plagued Hewlett-Packard (HP) [corporate website], just after the company announced [JURIST report; HP press release] the immediate resignation of its general counsel. HP admitted to the use of pretexting [SEC filing; CNET report] in early September, and at Thursday's hearing committee members denounced [chairman's statement] HP executives for allowing the use of controversial surveillance tactics. Several HP executives invoked their the Fifth Amendment rights to refuse to testify.

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Congress sends military commissions bill to White House
Alexis Unkovic on September 30, 2006 10:19 AM ET

[JURIST] The US Congress sent its final version of the military commissions bill [JURIST news archive] to President Bush late Friday after the House voted 250-170 [roll call] to approve the Senate's version of the legislation [text, PDF]. The House of Representatives [official website] had approved [JURIST report] its own version of the bill [HR 6166 text] Wednesday by a vote of 253-168 [roll call], but House leaders decided to forego the process of reconciling the two nearly-identical sets of legislation in the interests of getting the measure passed before Congress adjourned. The president is expected to sign the measure soon.

The Administration views the passage of the military commissions legislation, based on a draft initially proposed by the White House [JURIST report] earlier this month, as a major election-year victory, especially following the Senate's rejection of several proposed amendments [JURIST report] to its version of the bill, including one that would have eliminated a highly-controversial provision stripping detainees of the right to file habeas corpus petitions in federal court, sponsored by Senate Judiciary Committee chairman Sen. Arlen Specter (R-PA) [official website; JURIST news archive]. AP 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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