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Legal news from Friday, November 30, 2007

US Senate Judiciary chair urges independent judiciary for Pakistan
Mike Rosen-Molina on November 30, 2007 5:27 PM ET

[JURIST] US Senate Judiciary Committee Chairman Patrick Leahy (D-VT) [official website] Friday praised Pakistan's lawyers for standing up for the rule of law and emphasized the county's need for an independent judiciary as a guard against overreaching executive power. In a statement to JURIST, Leahy said:

The protest by Pakistan's lawyers [earlier this month] was an iconic moment about the importance of the rule of law, and the whole world was watching. As chairman of the Senate Judiciary Committee I see every day the importance of an independent judiciary in our own country and in our system of government. We depend on our courts to defend the Constitution and to act as a check on the abuse of executive power. Without an independent judiciary we would not have a democracy. The people of Pakistan need an independent judiciary as much as we do.
Last week, UN High Commissioner for Human Rights Louise Arbour [official website] similarly called on Pakistan to reestablish judicial independence [JURIST report], saying that an independent judiciary is just as important as free elections to a democracy.

Pakistani President Pervez Musharraf dismissed 14 Supreme Court judges, including Chief Justice Iftikhar Mohammed Chaudhry [JURIST news archive], in the wake of his November 3 declaration of a state of emergency [JURIST report], replacing them with lower court judges seen by many to be more loyal to the president. On Thursday Musharraf pledged to end emergency rule and reinstate the suspended constitution on December 16, but officials say he will not reinstate the ousted justices [JURIST report]. Legal observers in Pakistan tell JURIST that while the country's main political parties are jockeying for position in the upcoming parliamentary elections, neither one is likely to champion the reinstatement of the deposed judges or the larger judicial independence issue, leaving that in the hands of the lawyers movement.

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Spain arrests at least 40 awaiting sentence in ETA support trial
Eric Firkel on November 30, 2007 3:25 PM ET

[JURIST] Spanish police Friday arrested at least 40 of 56 defendants [JURIST report] accused of supporting Basque separatist group ETA [BBC backgrounder] in 2005, according to a court official cited by AP. Forty-six found guilty of belonging to various organizations are believed to have provided financial, political, media, and international support to ETA. Those arrested have been out on bail since the trial concluded in March. The National Court [Wikipedia backgrounder] will read out the formal verdicts in the case on December 10, and ordered the arrests to stop those convicted from fleeing Spain.

In October, three political leaders in Spain's Basque region, including its president, were ordered to stand trial [PDF text] for meeting publicly with members of the Batasuna party [BBC profile] to negotiate an ETA ceasefire. ETA has been blamed for more than 800 deaths in bombings and attacks since the 1960s. AP has more.

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Denmark rejects US request to take Guantanamo detainees
Josh Camson on November 30, 2007 3:12 PM ET

[JURIST] Danish Minister of Foreign Affairs Per Stig Moeller [official profile] said Friday that Denmark has rejected a US request to accept the transfer of several detainees from Guantanamo Bay [JURIST news archive]. Moeller said that the detainees could be potential security risks.

Approximately 70 detainees have been cleared for release [DOD press release], but the US has not yet found nations willing to accept the prisoners. In August, 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]. Last year UN Special Rapporteur on Torture Manfred Nowak [official website] said that European countries could help bring about the closing of Guantanamo Bay by accepting some detainees [JURIST report] into their judicial and penitentiary systems. AP has more.

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Rwanda court orders temporary release of ICTR investigator
Katerina Ossenova on November 30, 2007 2:54 PM ET

[JURIST] A Rwandan court has ordered that a defense investigator for the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] be provisionally released from police custody, according to Friday media reports. Leonidas Nshogoza was arrested in June 2007 for allegedly bribing witnesses and "minimizing" the 1994 Rwandan genocide [BBC backgrounder]. Prosecution spokesman Jean Bosco Mutangana said Nshogoza will remain free while his trial remains adjourned so that the prosecution can have more time to study an immunity claim raised by the defense. ICTR defense lawyers have demanded Nshogoza's unconditional release and criticized the charges for undermining the independence of the tribunal.

The ICTR recently announced that it will be unable to complete its work [JURIST report] before its mandate expires in December 2008. The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. Reuters has more.

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Canada court strikes down refugee agreement with US
Katerina Ossenova on November 30, 2007 2:14 PM ET

[JURIST] The Federal Court of Canada [official website] Thursday struck down a refugee agreement [judgment, PDF] between Canada and the US, noting that the US does not meet international refugee protection requirements or respect international conventions against torture. Justice Michael Phelan [official profile] essentially nullified the 2004 Safe Third Country Agreement [text], which barred foreign refugees who first arrived in the US from seeking refugee status in Canada and vice versa. Phelan noted that the US has not been compliant with the Refugee Convention or the UN Convention Against Torture [texts]. The court also held that the agreement discriminates against refugees based on how they first arrived in Canada and thus violates Canada's Charter of Rights and Freedoms [text].

The nullification of the agreement will likely result in Canada processing thousands more refugees each year. The US and Canadian governments have until January 14 to file an appeal. CTV News has more. The Montreal Gazette has additional coverage.

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Tennessee to delay lethal injection review pending Supreme Court decision
Patrick Porter on November 30, 2007 1:58 PM ET

[JURIST] Tennessee Governor Phil Bredesen [official website] said Thursday that the state will wait until the US Supreme Court rules on the constitutionality of lethal injections before modifying the state's execution protocols in accordance with a September federal court ruling [JURIST report]. Though Tennessee Attorney General Bob Cooper plans to appeal the September court decision which struck down already revised lethal injection protocols as unconstitutional because they do not ensure that prisoners are properly anesthetized before they receive a lethal injection, Bredesen noted that he expected that the appeals court would likely wait until the Supreme Court hands down a decision in Baze v. Rees (07-5439) [docket] before deciding the Tennessee case. Bredesen said it would be "inappropriate" to try and modify Tennesse's lethal injection procedure while the Supreme Court case is still pending.

The Supreme Court granted certiorari [JURIST report] in the Baze case in September and will consider whether lethal injection [JURIST news archive] constitutes cruel and unusual punishment in violation of the Eighth Amendment. At issue is the three-drug mixture [DPIC backgrounder] of an anesthetic, a muscle paralyzer and a substance to stop the heart used in Kentucky and over 30 other states. Opponents of the method claim that it does not contain enough anesthetic to relieve pain. AP has more.

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UK court orders Iran opposition group removed from terror list
Katerina Ossenova on November 30, 2007 1:32 PM ET

[JURIST] Britain's Proscribed Organisations Appeal Commission [official website] Friday ruled [judgment, PDF] that the UK should remove the People's Mujahedeen Organization of Iran (PMOI) [group website] from its list of terrorist organizations. PMOI is Iran's main political opposition organization and part of the National Council of Resistance of Iran (NCRI) [group website], an umbrella coalition of Iranian opposition groups. The commission ruled there was no evidence that the PMOI had been involved with terrorism since 2003 and so no longer satisfied any of the criteria for appearing on the blacklist. NCRI President-elect Maryam Rajavi called the six year battle [press release] to remove the organization from the list a "magnificent victory for justice and the Resistance as well as a message of firmness to religious fascism."

UK Minister of State Tony McNulty [official profile] said that the government was disappointed with the decision and intends to appeal. The PMOI was added to Britain's list of proscribed organisations under the Terrorism Act 2000 [text] in March 2001. In December 2006, the European Court of First Instance annulled an asset freeze [JURIST report] on PMOI by the Council of the European Union. The judgment prompted the Council of the European Union to revise [press release, PDF; JURIST report] the procedures used in establishing and maintaining the EU's terror lists. Reuters has more. The Guardian has additional coverage.

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EU lawmakers seek tougher gun control rules
Katerina Ossenova on November 30, 2007 1:07 PM ET

[JURIST] European Union (EU) [official website] lawmakers adopted a legislative report [press release] Thursday to tighten gun control laws and establish an extensive firearms database. The new rules are the result of 18 months of negotiations between the European Parliament [official website], national governments and gun advocates. The rules would prohibit anyone under 18 from buying a gun with the exception of minors involved in hunting or target shooting. Those over 18 will be barred from purchasing guns only if they are deemed a threat to public safety. The rules require that each member state set up a computerized database by 2014 to ensure that all firearms are traceable to their owners. This data will be stored for 20 years and be accessible by police and judicial officials.

A deadly school shooting in Finland [BBC report] earlier this month has made many see a need for increased gun control [JURIST news archive] in the European Union, which does not have consistent gun laws between its 27 members. The new rules still need to be approved by member states and, if passed, would go into effect in January 2008. EU justice ministers are expected to hold discussion about the rules next week in Brussels. Deutsche Welle has more. IHT has additional coverage.

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Israel high court blocks planned Gaza electricity cuts
Patrick Porter on November 30, 2007 1:03 PM ET

[JURIST] The Israeli Supreme Court [official website] ruled Friday that the government cannot proceed with plans to cut electricity to the Gaza Strip [BBC backgrounder] this weekend. The court did allow, however, a continuation of fuel supply cuts to the region, which began last month. According to AP, the three-judge panel wrote that "we were not convinced that the decision by (the state) to limit the amount of fuel transferred to the Gaza Strip harms, at this point, vital humanitarian needs in the strip." The electricity cuts were postponed because the plan lacked details on its extent. The court gave the government 12 days to address those concerns.

Shortly after the plan was announced last month, the electricity cuts were temporarily suspended [JURIST report], pending legal challenges [press release; JURIST report] from several human rights groups. The human rights groups allege that the Israeli government's plan to restrict energy supplies in Gaza constituted collective punishment [backgrounder] and had unsuccessfully sought an injunction against the government policy. Israeli officials say that cutting back energy supplies was the only option the Israeli government has aside from a full-scale military operation against Hamas [BBC backgrounder], which has refused to halt indiscriminate rocket attacks against Israeli positions from Gaza. AP has more.

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Ecuador constitutional assembly suspends national congress
Jaime Jansen on November 30, 2007 11:35 AM ET

[JURIST] The special Constitutional Assembly in Ecuador charged with rewriting Ecuador's constitution [text, in Spanish] suspended Ecuador's congress Thursday pending approval of a new charter in a nation-wide referendum, expected late next year. The special assembly, controlled by leftist President Rafael Correa [official website, in Spanish; personal website], will assume legislative duties until the new constitution is approved and the special assembly calls general elections. Correa pledged [JURIST report] to disband the Ecuadorean Congress and rewrite the country's constitution shortly after his leftist coalition won a landslide victory [JURIST report] in the Constitutional Assembly elections last month. Correa plans to push for a constitution free of foreign influence and to institute reforms to restrain powerful political parties [JURIST report], increase government accountability, and hold regional, rather than national, elections. Also last month, Correa urged the Constitutional Assembly [JURIST report] to consider transforming the current Constitutional Tribunal [official website] into a Constitutional Court insulated from political pressure. AP has more.

Correa proposed convening a constitutional assembly to draft a new constitution after a referendum to rewrite [JURIST report] the current constitution was overwhelmingly passed in April. Critics fear that Correa will follow the lead of Venezuelan President Hugo Chavez [BBC profile] in using the assembly to expand presidential power [JURIST report]. In April, the Congress dismissed the prior Constitutional Tribunal judges after they ordered the reinstatement of 50 lawmakers [JURIST report] who were dismissed [JURIST report] in February by the country's electoral tribunal for allegedly interfering in the referendum.

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Philippines police detain 50 after attempted Arroyo ouster
Jaime Jansen on November 30, 2007 11:06 AM ET

[JURIST] Philippine authorities have taken 50 military officers and supporters into custody following Thursday's attempted overthrow [JURIST report] of Philippine President Gloria Arroyo [official website; BBC profile]. About a dozen officers on trial in the Philippines [JURIST news archive] in connection with a failed 2003 mutiny [BBC report] Thursday walked out of court, took control of a Manila hotel, and demanded Arroyo's resignation. Philippine military and police forces subsequently regained control of the hotel after a lengthy confrontation. Authorities arrested about 100 military officers and civilian sympathizers, including former Vice President Teofisto Guingona [official profile], but only 50 remained in custody Friday. Philippine police are still searching for other suspects, including rebel leader Captain Nicanor Faeldon. AP has more. The New York Times has additional coverage.

In April, a Philippine military tribunal sentenced 54 military officers [JURIST report] to seven years and six months in prison for their involvement in the 2003 coup attempt. Charges were later dismissed [JURIST report] in October against four additional military officers connected to the same mutiny.

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Sudan court convicts UK teacher of insulting Islam
Jaime Jansen on November 30, 2007 10:24 AM ET

[JURIST] A Sudanese court Thursday convicted [AFP report] British school teacher Gillian Gibbons of insulting Islam and sentenced her to 15 days in prison for allowing her students to name the class teddy bear Muhammad. Gibbons will serve 10 more days in prison, after having already served five, and will then be deported. Gibbons had originally been charged with inciting religious hatred [Guardian report] and faced six months in prison, 40 lashes, and a fine. She was instead convicted of the lighter charge under Article 125 of the Sudanese criminal code. Gibbons was arrested [BBC report] early this week after several parents complained about the teddy bear.

British Foreign Minister David Miliband [BBC profile] immediately expressed disappointment [press release] with the conviction, saying the charges against Gibbons should have been dismissed because it was "an innocent misunderstanding by a dedicated teacher." Meanwhile, local protesters [Guardian report] in the Sudanese city of Khartoum demanded the execution of Gibbons. The UK Times has more.

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Putin signs measure to suspend Europe arms treaty
Jaime Jansen on November 30, 2007 10:07 AM ET

[JURIST] Russian President Vladimir Putin [official website] on Friday signed into law a measure that will suspend the nation's responsibilities under the 1990 Conventional Forces in Europe Treaty [text; backgrounder]. The Federation Council of Russia, Russia's upper house, unanimously approved [JURIST report] the measure earlier this month following a unanimous vote in the State Duma [JURIST report] in favor of suspending the CFE. The Russian government first threatened to temporarily withdraw [JURIST report] from the treaty in June, amid tensions between the US and Russia over US plans for an anti-missile defense shield in central Europe, which Russia perceives to be a threat to Russian national security. The measure legislatively reinforces a presidential decree [JURIST report] issued by Putin in July. AFP has more.

In April, Putin told both houses of the Russian parliament that he was suspending Russia's implementation of the CFE Treaty [JURIST report] due to what he called a US-led NATO military "build up" in Europe, and said he would explore the possibility of ending Russia's commitments under the treaty. The CFE Treaty, concluded in 1990 by the 22 members of NATO and the former Warsaw Pact, regulates deployment of non-nuclear forces in Europe. In October, Putin also threatened to withdraw [JURIST report] Russia from the 1987 Intermediate-Range Nuclear Forces Treaty [US DOS backgrounder] unless that treaty is expanded to include neighboring countries such as China, India, and Pakistan.

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Federal appeals court upholds DNA database for nonviolent felons
Jaime Jansen on November 30, 2007 8:37 AM ET

[JURIST] All convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country, a divided panel of the US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] Thursday. Judge Margaret McKeown, writing for the majority, upheld a 2004 amendment [summary] to the DNA Analysis Backlog Elimination Act (DNA Act) [summary], requiring any felon in custody, or on probation, parole, or supervised release to submit DNA samples to the FBI's Combined DNA Indexing System (CODIS) [official website; FBI backgrounder, PDF]. The original act, passed in 2000, only required DNA samples from convicted felons of qualifying offenses, relating mostly to violent and sexual crimes. The 2004 amendment extended the qualifying crimes to cover a nonviolent drug offender convicted in Washington. Thomas Kriesel served his prison sentence, and later refused to submit his DNA sample to the CODIS database while under three additional years of supervised release. The Ninth Circuit upheld the 2004 amendment, writing that:

[T]he DNA Act is constitutional because the government's significant interests in identifying supervised releases, preventing recidivism, and solving past crimes outweigh the diminished privacy interests that may be advanced by a convicted felon currently serving a term of supervised release.
Several other circuits have already upheld the DNA Act on similar grounds. In 2005, the Third Circuit ruled [opinion, PDF] that a convicted bank robber had to submit DNA samples [JURIST report] to the CODIS database. Similarly, a New Jersey state appeals court upheld a comparable state law [JURIST report] in 2005.

The Ninth Circuit ruling does not cover a 2006 amendment [text] to the DNA Act, which calls for DNA collection from arrestees or non-citizens detained by the US. The San Francisco Chronicle has more.

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Iraq PM formally asks US to hand over 'Chemical Ali'
Jaime Jansen on November 30, 2007 7:52 AM ET

[JURIST] Iraqi Prime Minister Nouri al-Maliki [BBC profile] has formally asked US President George Bush to hand over Ali Hassan al-Majid [BBC profile; JURIST news archive], better known in the Western media as "Chemical Ali," and two other former members of Saddam Hussein's former regime, Iraqi officials said Thursday. In a letter to President Bush Tuesday, Maliki demanded that the US hand over the three men immediately. Earlier this month, Maliki accused the US military of thwarting Iraqi attempts to execute the three men [JURIST report], and expressed his "determination to ensure that the sentences are carried out." At that point, US commanders said they would not transfer the men to Iraqi custody until they received an "authoritative" request from the Iraqi government. On Monday, Iraqi Kurdish and Shiite lawmakers criticized the delay [JURIST report] in the executions of the three men, while Sunni leaders have campaigned to commute the death sentence of Sultan Hashim al-Taie, a man many believe Hussein forced to follow orders. AP has more.

The Iraqi High Tribunal sentenced [JURIST report] al-Majid and two co-defendants to death in June on genocide and war crimes charges. The Tribunal's Appeals Chamber upheld the death sentences [JURIST report] in September. Under Iraqi law, the executions were supposed to have taken place 30 days after the men were sentenced, meaning that the men should have been executed no later than October 4. Iraq's Presidency Council, including Kurdish President Jalal Talibani, Shi'ite Vice-President Adel Abdul-Mahdi, and Sunni Vice-President Tareq al-Hashemi, have nonetheless refused to sign any execution order [JURIST report]. An Iraqi judge said in September that presidential approval is not required [JURIST report] to carry out an execution for al-Majid and his co-defendants, but al-Hashemi reasserted in October that the presidency did in fact have the power to block the carrying out of the death sentences [AP report], regardless of their approval by Maliki.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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