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Legal news from Thursday, September 6, 2007

Zimbabwe police charge opposition leader with disorderly conduct
Michael Sung on September 6, 2007 7:47 PM ET

[JURIST] Zimbabwe police charged opposition leader Morgan Tsvangirai [BBC profile; JURIST news archive] with disorderly conduct Thursday for allegedly causing a disturbance in early August by touring markets, according to a spokesperson for Tsvangirai's Movement for Democratic Change [party website]. The charges, which the party said amounted to political intimidation, were brought only days after Tsvangirai returned from an overseas tour in which the opposition leader publicly criticized the government of President Robert Mugabe [BBC profile; JURIST news archive].

Mugabe has been harshly criticized for his handling of the economy and for his increasingly authoritarian rule. Zimbabwe's inflation rate, which is reportedly exceeding 5000 percent, is largely attributed to Mugabe's controversial white-owned farm seizure program as previously productive farms have become barren under inexperienced new owners. In June, the International Commission of Jurists accused [JURIST report] the Zimbabwean government of "interfering with the proper functioning of the administration of justice, the role of lawyers and their independence." Last month, a coalition of Zimbabwean human rights groups reported that alleged cases of human rights abuses were nearing record numbers [JURIST reports]. AP has more.

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Pakistan lawyers rally, boycott courts in push for Musharraf resignation
Leslie Schulman on September 6, 2007 6:40 PM ET

[JURIST] A Pakistani lawyers group Thursday pressed its campaign to defeat an expected re-election bid by President Pervez Musharraf [BBC profile], holding planned protest rallies and boycotting courts nationwide. Speaking on behalf of the lawyers, Pakistani Supreme Court Bar Association president Munir Malik said [JURIST report] that the group's goal is to secure the resignation of Musharraf and to restore the 1973 Constitution [text]. Meanwhile, former prime minister Nawaz Sharif, who has been living in exile after being deposed in a 1999 military coup led by Musharraf, plans to return to Pakistan [JURIST news archive] on Monday to challenge Musharraf's re-election bid. Sharif's return was authorized by the Supreme Court in a ruling [JURIST report] last month.

Earlier this year Pakistani lawyers led a four-month campaign to reinstate suspended Pakistan Supreme Court Chief Justice Iftikhar Chaudhry [official website; JURIST news archive] after Musharraf suspended him in March for alleged judicial misconduct. Chaudhry was reinstated in July, with all charges of misconduct [JURIST reports] dismissed. AP has more.

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UN rights expert condemns Iraqi use of death penalty
Alexis Unkovic on September 6, 2007 6:05 PM ET

[JURIST] UN special rapporteur on the independence of judges and lawyers Leandro Despouy [official website] has issued a new report [text] criticizing the government of Iraq for its ongoing use of the death penalty [JURIST news archive]. In the report, Despouy specifically condemned the government for executing Iraqi prisoner Awraz Abdel Aziz Mahmoud Sa'eed [AI profile] despite a UN request to spare him because he may have had information about the 2003 bombing of a UN compound in Baghdad [GlobalSecurity backgrounder]. The United Nations has urged Iraq to stop using the death penalty since it was reintroduced in 2004 following the US occupation. IPS has more.

In June, Despouy similarly urged Iraq to stop carrying out death sentences [JURIST report], saying that the use of capital punishment despite threats of violence against the judiciary and the continued lack of independent tribunals and adequate defense counsel violates the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In April, Amnesty International reported that more than 270 people have been sentenced to death [JURIST report] in Iraq since 2005, and more than 100 have actually been executed. The report [text] found that Iraq's execution rate ranked as the world's forth highest since the reinstatement of the death penalty. Iraqi officials have consistently dismissed criticisms of the country's use of capital punishment, saying that the death penalty is a fundamental component of implementing Islamic law.

Earlier this week, the Iraqi High Tribunal [official website] Appeals Chamber of the upheld the death sentences [JURIST reports] of three defendants, including Saddam cousin and former defense minister Ali Hassan al-Majid - often derided in the West as 'Chemical Ali' [BBC profile] - convicted for their roles in the slaughter of ten of thousands of Kurds during the 1988 Anfal campaign [HRW backgrounder].

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Zimbabwe ruling party proposes new changes to constitutional amendments bill
Mike Rosen-Molina on September 6, 2007 5:26 PM ET

[JURIST] The ruling party of Zimbabwe Thursday announced that it has proposed changes to a bill currently before parliament to amend the Zimbabwean constitution [PDF text]. The Zimbabwe African National Union - Patriotic Front (ZANU-PF) [Wikipedia backgrounder] said that Justice Minister Patrick Chinamasa presented a report to the politburo on the proposed changes, but it did not elaborate on what the changes were.

The Zimbabwean government published [JURIST report] the bill to amend the constitution in June. If adopted, the reforms would allow the simultaneous election of the president and both houses of legislature. Critics allege that the reforms are an attempt by Zimbabwean President Robert Mugabe [BBC profile] to weaken the opposition. The proposed amendments would end the existing assembly's term two years early in 2008, reduce the president's term from six years to five, and increase the number of legislators in the House of Assembly from 150 to 210 and the Senate from 66 to 84. In addition, the number of House of Assembly members appointed by the president would decrease from 30 to 10, but the number of senators appointed by the president would go from 16 to 34. AFP has more.

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New Jersey Supreme Court decertifies nationwide Vioxx class action
Alexis Unkovic on September 6, 2007 5:26 PM ET

[JURIST] The New Jersey Supreme Court [official website] dismissed a class action lawsuit [case documents] filed against pharmaceutical giant Merck & Co. [corporate website] Thursday, reversing a lower court's decision to grant nationwide class certification in the case. The lawsuit, filed by the International Union of Operating Engineers [union website] Local 68 Welfare Fund on behalf of various insurers and health-maintenance organizations, was one of several pending cases regarding Merck's marketing and distribution of the painkiller Vioxx [Merck backgrounder; JURIST news archive].

Decertification of the class action means plaintiffs can still file individual lawsuits against Merck but not as a unified class. Merck applauded [press release] the court's ruling, reiterating its argument that nationwide class certification was inappropriate in this case. In November 2006, a federal judge declined to certify a similar national class action suit [JURIST report] against Merck, ruling that it made more sense to try those cases in their respective states of origin. Merck has its worldwide headquarters in New Jersey. Bloomberg has more.

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Federal judge rules Patriot Act national security letter gag orders unconstitutional
Alexis Unkovic on September 6, 2007 4:45 PM ET

[JURIST] Issuing National Security Letters (NSLs) [CRS backgrounder, PDF; FBI backgrounder] demanding private information and imposing gag orders on recipients under the reauthorized and revised USA Patriot Act [JURIST news archive] is unconstitutional without judicial review, US District Judge Victor Marrero of the Southern District of New York ruled [opinion, PDF; ACLU press release] Thursday. In September 2004, a federal judge struck down [PDF text] as unreasonable search and seizure the NSL gag order provision in the original version of the act rushed through Congress after 9/11. The provision was amended in the March 2006 renewal of the Patriot Act [JURIST report]. In Thursday's ruling, Marrero said that allowing the FBI to issue NSLs without seeking prior court approval from a judge or grand jury violated several constitutional principles including separation of powers and First Amendment rights.

The American Civil Liberties Union (ACLU) [advocacy website] brought the lawsuit [ACLU materials] on behalf of an anonymous Internet service provider that received an NSL. Lawyers representing the ACLU argued before the federal court [JURIST report] in August that NSLs authorized under the Patriot Act are unconstitutional because they act as a gag order without any judicial check [press release]. AP has more.

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HRW denounces 'indiscriminate' Israeli airstrikes in 2006 Lebanon conflict
Alexis Unkovic on September 6, 2007 4:12 PM ET

[JURIST] "Indiscriminate airstrikes" by Israel [JURIST news archive] were responsible for the majority of civilian casualties during the summer 2006 Lebanon conflict [JURIST news archive], according to a 249-page report [text, press release] issued Thursday by Human Rights Watch (HRW) [advocacy website]. HRW investigated about 500 of the reported 900 civilian deaths. Its report specifically refutes Israeli assertions that civilian casualties were due to Hezbollah [party website, in Arabic; CFR backgrounder] forces using human shields. HRW Executive Director Kenneth Roth said that Israel did not abide by its legal duty to distinguish between military and civilian targets and issued insufficient evacuation warnings. AP has more.

Last month in another report [text; press release], HRW condemned Hezbollah [JURIST report] for recklessly and sometimes intentionally firing rockets at Israeli civilian targets during the brief struggle, which essentially ended in a standoff.

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Fiji reinstates state of emergency
Alexis Unkovic on September 6, 2007 3:24 PM ET

[JURIST] Fiji's military commander and self-declared interim Prime Minister Voreqe "Frank" Bainimarama [BBC profile] announced in a radio broadcast Thursday that a state of emergency will be imposed in Fiji [government website; JURIST news archive] for the next month. Bainimarama said the emergency measures will not have a major effect on citizens and were enacted in response to the return of exiled former Prime Minister Laisenia Qarase [Wikipedia profile] on Saturday. Qarase reportedly returned to Fiji over the weekend in advance of litigation seeking to declare as illegal the December 2006 coup that overthrew his government.

Bainimarama originally declared a state of emergency in Fiji after overthrowing the government in a military coup [JURIST reports] on December 5, 2006. The emergency powers withdrew some rights protected under the Fijian constitution [text] and allowed the military to detain civilians at will. The government of Fiji subsequently lifted the emergency regulations [JURIST report] May 31. AFP has more.

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US transfers 16 Saudi detainees from Guantanamo Bay
Gabriel Haboubi on September 6, 2007 2:30 PM ET

[JURIST] The US Department of Defense [official website] said Thursday that 16 Guantanamo Bay [JURIST news archive] detainees have been transferred to their home country [press release] of Saudi Arabia [JURIST news archive]. Saudi Interior Minister Prince Nayef bin Abdul-Aziz [official website] welcomed the release of detainees, and said he was hopeful that all Saudi detainees currently in custody at Guantanamo Bay would be returned to the country. The Defense Department has indicated that approximately 80 detainees at Guantanamo are currently eligible to be transferred off the base, and the terms of their departure are the focus of ongoing discussions between the US and the detainees' home nations.

With the transfer, about 340 detainees remain at Guantanamo Bay. Last month, US President George W. Bush said that while he hopes that the prison can eventually be closed, other countries have been reluctant to accept the detainees [JURIST report]. Reuters has more.

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South Korea appeals court suspends sentence of convicted Hyundai chairman
Gabriel Haboubi on September 6, 2007 2:09 PM ET

[JURIST] A South Korean appeals court Thursday suspended the prison sentence of Chung Mong-koo [Forbes profile], chairman of Hyundai Motors Group [corporate website], for five years, saying imprisoning him for embezzlement and bribery would be too risky for the nation's economy. Chung was convicted [JURIST report] in February and sentenced to three years in prison for embezzling more than $100 million of company money, which was used for personal expenses and to finance lobbyists. With Thursday's decision of the Seoul High Court, Chung's sentence will be eliminated as long as he does not violate the law over the next five years.

Chung had requested that he not serve any prison time, so that he could devote himself to benefiting the country's economy. In May he promised to donate over a billion dollars to charity [JURIST report], a promise the appeals court ordered him to fulfill. AP has more.

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California appeals violent video game law ruling
Gabriel Haboubi on September 6, 2007 1:27 PM ET

[JURIST] California Governor Arnold Schwarzenegger Wednesday filed an appeal [press release] of last month's US District Court decision ruling that a 2005 law [PDF text] banning the sale of violent video games to minors was unconstitutional [opinion, PDF; JURIST report]. Schwarzenegger said that he supported the law because "many studies show the link between playing ultra-violent video games and violent behavior." District Judge Ronald Whyte of the Northern District of California ruled the bill's restrictions could not stand without evidence that violent video games are "more harmful than violent television, moves, Internet sites or other speech-related exposures." Schwarzenegger promised that an appeal would be filed [press release] when the ruling was announced last month.

Also Wednesday, the Entertainment Software Association (ESA) [trade website], who brought the suit challenging the 2005 law [JURIST report], said that it has filed a motion with Whyte seeking reimbursement of $324,840 [press release] in attorney fees and expenses. ESA President Michael Gallagher said that California citizens should be outraged at their elected leaders for spending tax-payer money in defense of a law "that California's state leaders knew was unconstitutional." Reuters has more.

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White House facing lawsuit over millions of 'missing' e-mails
Leslie Schulman on September 6, 2007 1:07 PM ET

[JURIST] The National Security Archive [advocacy website] filed a lawsuit [complaint, PDF; press release] Wednesday against the Executive Office of the President [official website] and other presidential affiliates to compel recovery of 5 million electronic messages that apparently went missing from White House computers between March 2003 and October 2005. The missing e-mails became the subject of controversy during the investigation of the leaking of CIA operative Valerie Plame's identity and became material again in the recent Congressional probe into the DOJ firings of eight US Attorneys [JURIST news archives]. The complaint alleges:

[T]he e-mails at issue were improperly deleted from servers maintained by the Executive Office of the President and currently exist only on back-up tapes. Unless relief is granted and the e-mails expeditiously restored from the back-up tapes, these federal and presidential records may be lost forever.
The lawsuit also seeks an order requiring the government to replace its previous archival management system - abandoned by the White House in 2002 - with one that complies with federal law. The complaint states:
[I]n the absence of an adequate archival system, e-mails continue to be deleted improperly from the servers. Despite the fact that the Office of Administration has proposed a plan to restore the deleted e-mails and to implement an appropriate archival management system, no such plan has been implemented by the White House, again in violation of federal law.
According to the suit, the White House has violated both the Federal Records Act and the Presidential Records Act [texts] in its deletion of e-mails and failure to implement a new system.

In June, the US House of Representatives Oversight Committee found [JURIST report] that the White House had been using e-mail accounts issued by the Republican National Committee (RNC) [party website] in order to circumvent the PRA, which requires the preservation of presidential records on all activities "that reflect the performance of his constitutional, statutory, or other official or ceremonial duties." The Oversight Committee found that there had been "extensive destruction" of e-mail records of officials who had been using RNC accounts. AP has more.

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Tunisia abusing ex-Guantanamo detainees despite promising humane treatment: HRW
Joshua Pantesco on September 6, 2007 11:53 AM ET

[JURIST] Tunisian officials have been mistreating and abusing two former Guantanamo Bay [JURIST news archive] detainees since their release from the US prison facility in June, Human Rights Watch (HRW) said in a report [text] released Wednesday. The report alleges that the two men, who were held at Guantanamo Bay for five years without being charged with a crime, have been beaten, threatened, and coerced to confess to criminal charges [press release] since their return to Tunisia eleven weeks ago. They are currently in jail awaiting charges. According to HRW, Tunisia is allowing the mistreatment to occur despite having provided the US with diplomatic assurances that the prisoners would not be abused upon return.

The US Department of Defense transferred [JURIST report] the two men back to Tunisia in June after they passed through a review process. Since 2002, approximately 435 detainees have been transferred out of Guantanamo and approximately 340 remain [press release]. In the report, HRW asked the US to establish an advance notice of transfer procedure and allow potential transferees to challenge their transfers in federal court if they believe they could be subject to torture in their home country.

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Louisiana high court lifts procedural hurdle delaying Katrina lawsuits
Joshua Pantesco on September 6, 2007 11:11 AM ET

[JURIST] The Supreme Court of Louisiana ruled 4-3 [PDF text] Wednesday that a wrongful death lawsuit alleging that a hospital negligently failed to provide emergency power to sustain life support systems or implement an adequate evacuation plan could proceed without first passing through a medical review panel, a process that can take a year or more to complete. The suit was brought by the relatives of a Louisiana woman who was admitted into a hospital one day before Hurricane Katrina [JURIST news archive] struck New Orleans. She died after the hospital was unable to provide power for her portable ventilator or transport her to another facility after the storm knocked out power to the hospital. The majority found that the complaint alleged claims more similar to products liability and general negligence than to medical malpractice, which under the Louisiana statute at issue requires an allegation that a deficiency in professional medical skill caused the injury.

Wednesday's decision is viewed as a victory for the hundreds of Hurricane Katrina victims who suffered similar injuries while in the hospital's care. One dissenting judge wrote that the case essentially alleged medical malpractice because the actual cause of death resulted "from the hospital's failure to provide life-sustaining care, i.e., failure of treatment." AP has more.

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US Marine officers censured for handling of Haditha Iraqi murders probe
Joshua Pantesco on September 6, 2007 10:11 AM ET

[JURIST] The Secretary of the Navy on Wednesday handed down letters of censure [press release, PDF] to three US Marine officers for improper performance of duties related to the reporting and investigation of the killings of 24 Iraqi civilians at Haditha [USMC timeline; JURIST news archive] in November 2005. A previous investigation into the officers' alleged misconduct revealed no evidence of a plan to conceal the Haditha incident which would violate the Uniform Code of Military Justice (UCMJ) [text]. As the investigation did not indicate a UCMJ violation, the officers were not brought before an Article 32 panel to determine whether they should face courts-martial for their actions. Letters of censure are the most severe administrative punishment available to the Secretary of the Navy. The censured officers - Maj. Gen. Richard A. Huck, Col. Stephen W. Davis and Col. Robert G. Sokoloski - may be denied promotion and may lose full retirement benefits as a result of the letters. AP has more.

The Haditha investigation has culminated in the largest US military prosecution involving civilian deaths during the war in Iraq. In August, preliminary Article 32 hearings began for US Marine Staff Sgt. Frank Wuterich [advocacy website], who commanded the platoon implicated in the killing and suspected cover-up. He faces several counts of unpremeditated murder, as well as charges of soliciting another to commit an offense and making a false official statement. Also in August, a hearing officer recommended [JURIST report] that murder charges be dropped against Lance Cpl. Stephen Tatum [advocacy profile] for his role in the Haditha incident. The hearing officer argued there was insufficient evidence to support bringing Tatum to court-martial on charges of unpremeditated murder, negligent homicide and assault [USMC charge list]. A final decision has not yet been issued on whether Tatum will face court-martial. An official report on the incident by US Army Major General Eldon Bargewell found "serious misconduct" [JURIST report] on all levels of the US Marine Corps chain of command.

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UN to appoint judges to Hariri tribunal by year-end: Ban
Joshua Pantesco on September 6, 2007 9:51 AM ET

[JURIST] UN Secretary-General Ban Ki-Moon on Wednesday said that he will appoint judges to the UN Special Tribunal for Lebanon [UN materials] as soon as sufficient funding for the tribunal is in place by the end of 2007. The secretary-general estimates that the tribunal, established to investigate the assassination of former Lebanese Prime Minister Rafik Hariri [JURIST news archive], will cost $120 million over three years. Ban expects the UN to secure $35 million in funds for the first year of operation by the end of this year, along with an additional $85 million in pledges to cover the next two years. Ban said that he has already taken preliminary steps on the selection of international and Lebanese judges, and that he hopes to announce the names of judges to sit on the tribunal by the end of the year. AP has more.

The UN Security Council unilaterally established the tribunal [JURIST report; UN News report] in May after a divided Lebanese government failed to agree on a proposal. The tribunal will also investigate [JURIST report] and possibly try suspects in 17 other attempted and successful political assassinations in Lebanon. In August, the Netherlands agreed to host the tribunal Tribunal [JURIST report].

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Federal judge slams government response to FOIA requests on surveillance program
Joshua Pantesco on September 6, 2007 8:52 AM ET

[JURIST] A federal judge on Wednesday ordered [PDF opinion; press release] the Federal Bureau of Investigation, the Office of Legal Counsel, and the office of the Attorney General to submit more information to the court in support of their motion for summary judgment in a consolidated lawsuit seeking the release of documents related to the government's domestic surveillance program [JURIST news archive]. In the opinion, US District Judge Henry Kennedy said that in order to conduct a meaningful review of the government's denial of the plaintiff's requests for documents under the Freedom of Information Act (FOIA) [text], the government must do more than simply conclude that the requested documents are confidential:

While the court is certainly sensitive to the government's need to protect classified information and its deliberative processes, essentially declaring "because we say so" is an inadequate method for invoking Exemption.
The court is considering a consolidated lawsuit originating from FOIA requests filed by several privacy advocates, including the Electronic Privacy Information Center [JURIST report; advocacy website], the Electronic Frontier Foundation [JURIST report; advocacy website], and the National Security Archive [organization website].

Judge Kennedy refused to review the disputed documents in camera and requested that the government resubmit its reasons for claiming that certain requested documents fall within one of the FOIA exemptions. 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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