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Legal news from Wednesday, January 16, 2008




Cuba held fewer political prisoners in 2007: rights group
Andrew Gilmore on January 16, 2008 7:55 PM ET

[JURIST] The number of political prisoners in Cuba [JURIST archive] has decreased from 283 at the end of 2006 to to 234 at the end of 2007, but human rights abuses continue in the communist Caribbean state, according to the Cuban Commission for Human Rights and National Reconciliation (CCDHRN) [El Pais backgrounder, in Spanish] Wednesday. The CCDHRN, led by Cuban human rights activist Elizardo Sanchez, is the only independent source of information regarding political arrests in Cuba. The group is considered illegal by the Cuban government, but its existence and operation is tolerated by the regime. In August 2007, the group estimated that the number of political prisoners in detention had dropped by over 20 percent, from 316 to 246, since acting President Raul Castro assumed duties from Cuban President Fidel Castro [official profile], but said the provisional government had done little to improve human rights. The Cuban government officially denies the existence of political prisoners. Reuters has more.

Sanchez reported in December that the Cuban government had increased its arrest and harassment of political activists [BBC report] in advance of International Human Rights Day on December 11. Last month, Cuba agreed to sign an international human rights pact [JURIST report] and admit UN rights observers into the country. In September 2007, the government detained at least 40 protesters [JURIST report] demanding humane treatment of political prisoners. In August 2007, Cuba released two political dissidents from detention [JURIST report].






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Former US congressman indicted in terrorism funding case
Andrew Gilmore on January 16, 2008 7:00 PM ET

[JURIST] Mark Deli Siljander [US Congress profile], a former Republican US congressman from Michigan and US representative to the United Nations, was indicted [indictment, PDF; DOJ press release] Wednesday for conspiracy to commit money laundering, money laundering, obstruction of justice, and forfeiture. The charges stem from Siljander's association with the now defunct charity Islamic American Relief Agency (IARA), which allegedly funneled funds to key Taliban and al-Qaeda ally Gulbuddin Hekmatyar [BBC profile]. IARA was the American affiliate of the Islamic African Relief Agency, an organization based in Khartoum, Sudan and designated by the US Treasury Department as a supporter of global terrorism [Treasury Department press release] on October 13, 2004.

IARA is accused of commingling charitable donations and funds obtained through cooperative agreements with the United States Agency for International Development (USAID) [agency website]. IARA allegedly used the commingled funds to pay Siljander for his lobbying to get IARA removed from the US Treasury terror list, as well as pass money to Hekmatyar and terrorist organizations. Siljander allegedly received $50,000 from IARA. BBC News has more. Reuters has additional coverage.






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Spain judge shifts procedural focus of Guatemala geonocide probe
Patrick Porter on January 16, 2008 6:40 PM ET

[JURIST] Spanish National Court judge Santiago Pedraz said Wednesday he will switch the focus of his investigation into genocide, torture, and other crimes against humanity in Guatemala's 36-year civil war [GlobalSecurity backgrounder; BBC timeline] towards obtaining witness testimony in light of recent setbacks. The decision came after a Guatemalan court ruled in December that former dictator Efrain Rios Montt and other high ranking military officers could not be extradited to Spain [JURIST report]. Pedraz had previously conducted his investigation using "letters rogatory," letters of legal request used when no governing treaty exists, but received no responses; he hopes that finding witnesses or victims will allow the investigation to go forward. A court source told AFP that Pedraz is frustrated by the Guatemalan decision, and that he has asked international media to help publicize his search for more victims or witnesses.

The Spanish National Court took jurisdiction [JURIST report] of the case in 2006 after the Spanish Constitutional Court held [ruling, in Spanish; JURIST report] in 2005 that Spanish courts can exercise universal jurisdiction over war crimes committed during Guatemala's civil war. Guatemala's Prensa Libre reported [text, in Spanish] in December that 30 Guatemalan witnesses are scheduled to appear before Spain's National Court beginning in February. AFP has more. AP has additional coverage.






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New ICTY prosecutor says finding war crimes fugitives top priority
Patrick Porter on January 16, 2008 5:35 PM ET

[JURIST] New International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Chief Prosecutor Serge Brammertz [ICC profile; JURIST report] said Wednesday that finding and prosecuting Balkan war crimes suspects will be a top priority under his leadership. Brammertz called on [statement] the states of the former Yugoslavia to cooperate in working toward the arrest of Bosnian Serb leaders Ratko Mladic [BBC profile] and Radovan Karadzic [ICTY indictment], as well as Croatian Serb war crimes suspects Goran Hadzic and Stojan Zupljanin [ICTY indictments]. UN News Centre has more. AFP has additional coverage.

Brammertz took over the court's leadership earlier this month and said that he would continue his predecessor's tough stance on Serbian cooperation [JURIST report]. Former chief prosecutor Carla Del Ponte [JURIST news archive] long criticized Serbia for its seeming reluctance to cooperate with the ICTY. The EU had made Serbia's cooperation with the ICTY a key element of its membership negotiations [EU accession materials].






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France high court rejects transfer of Rwanda war crimes suspect to ICTR
Alexis Unkovic on January 16, 2008 4:48 PM ET

[JURIST] The Supreme Court of France [official website, in French] Wednesday overturned a November 2007 ruling by the Court of Appeal of Paris that approved the transfer [JURIST report] of Rwandan genocide suspect Dominique Ntawukuriryayo [ICTR case materials] to the custody of the International Criminal Tribunal for Rwanda [official website], finding that the lower court had committed several procedural errors. The case will now be sent back to a lower court for review. Ntawukuriryayo was arrested in France [JURIST report] in October 2007 and charged [indictment, PDF] with genocide, complicity in genocide and direct and public incitement to genocide. AFP has more.

The charges against Ntawukuriryayo stem principally from his alleged involvement in the Kabuye Hill massacre that occurred over five days in late April 1994, during which as many as 25,000 Tutsi refugees were killed. Then sub-prefect for the Gisagara region, Ntawukuriryayo allegedly promised protection to Tutsis and ordered them to move to Kabuye Hill; instead they were surrounded and shot by gendarmes and communal policemen. Approximately 800,000 people died in the following three months of the Rwandan genocide [BBC backgrounder].






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Brocade ex-CEO sentenced for stock options backdating
Deirdre Jurand on January 16, 2008 4:48 PM ET

[JURIST] A federal judge in San Francisco sentenced former Brocade Communications Systems [corporate website] CEO Gregory Reyes Wednesday to 21 months in prison and imposed a $15 million fine for backdating stock options [SEC complaint, PDF]. Judge Charles Breyer stayed the sentence pending an appeal. A federal jury found Reyes guilty [JURIST report] in August 2007 of conspiracy, securities fraud, lying to accountants, and keeping false books for backdating employee stock options to increase employee profits on trades. In December 2007, lawyers for Reyes filed a motion for a new trial [PDF text] after the prosecution's key witness recanted her testimony, but Breyer rejected it on grounds that any new statements she might have made would probably not have changed the trial's outcome. Breyer's November 2007 sentencing order [PDF text] indicated the prison term would range from 15-21 months. Reuters has more. The San Jose Mercury News has local coverage.

The practice of backdating includes setting an option-holder's stock price at a day when stock prices were low instead of the price on the day the option was granted. Although the practice itself is not illegal, it can become so if proper records are not kept to account for it. Reyes' case was the first stock-options backdating case to go to trial [AP report], but the US Justice Department (DOJ) has charged at least 12 corporate officials for backdating, all stemming from a 2006 DOJ securities fraud probe. In January 2007, the US Attorney's office in San Francisco opened a separate criminal probe [JURIST report] into the option backdating practices of Apple, Inc. [corporate website]. Although charges against CEO Steve Jobs are unlikely, the Securities and Exchange Commission [official website] filed a complaint [PDF text] against former Apple General Counsel Nancy Heinin for allegedly backdating two 2001 stock option grants.






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Federal judge orders Texas city to turn over land for US-Mexico border fence
Alexis Unkovic on January 16, 2008 4:12 PM ET

[JURIST] US District Court Judge Alia Moses Ludlum of the Western District of Texas [official website] has ordered the City of Eagle Pass, Texas [official website] to temporarily turn over 233 acres of its land to the federal government so it can begin construction of a 670-mile fence on the border between the US and Mexico. Ludlum's ruling came in response to a lawsuit [AP report] filed by the US Department of Justice against the city Monday. The judge ordered the city to turn over the property by Tuesday. Last week, US Department of Homeland Security (DHS) [official website] officials said DHS is preparing over 100 court cases [JURIST report] against landowners along the US-Mexico border who have refused to allow construction of the border fence on their properties. AP has more.

US President George W. Bush signed the Secure Fence Act of 2006 [PDF text; JURIST report] in October 2006. The legislation authorizes the construction of approximately 700 miles of fencing along the 2,000-mile US-Mexican border. Critics of the fence include locals in border communities, who feel that a border fence could interfere with irrigation, harm wildlife, and disrupt Mexican consumers and investors that positively contribute to the local economy. In May 2007, the International Boundary and Water Commission [official website] said that construction of the fence could violate a boundary treaty [JURIST report] between the United States and Mexico.






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US Supreme Court hears arguments in patent infringement, tax cases
Alexis Unkovic on January 16, 2008 3:10 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Wednesday in Quanta Computer v. LG Electronics [LII case backgrounder; merit briefs], 06-937 [docket; cert. petition, PDF], a patent infringement case on whether a patent holder's rights may be exhausted through certain license agreements. LG Electronics holds a patent on certain computer components, but had an agreement with Intel Corp. [corporate websites] that let Intel manufacture those parts. Quanta Computer [corporate website] bought the patented parts from Intel and used them to make notebook computers. LG Electronics sued Quanta, arguing that Quanta infringed its patents not by buying the parts but by using them to make computers. The Court must determine whether the US Court of Appeals for the Federal Circuit correctly held [opinion, PDF] in July 2006 that the sales of patented devices do not exhaust LG Electronics' patent claims. Reuters has more.

The Court also heard arguments [transcript, PDF] Wednesday in MeadWestvaco Corp. v. Illinois Department of Revenue [LII case backgrounder; merit briefs], 06-1413, [docket; cert. petition, PDF], a case in which the Court is considering whether a state court's standard for determining whether it may tax the gain from the sale of a business by a non-domiciliary violates the Commerce and Due Process Clauses of the US Constitution.






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Bush grants exemption from environmental law for Navy sonar use
Katerina Ossenova on January 16, 2008 2:23 PM ET

[JURIST] US President George W. Bush on Tuesday authorized the US Navy to continue using sonar [press release] in its anti-submarine warfare training off the coast of southern California despite a November 2007 ruling [PDF text; NRDC press release] by the US Court of Appeals for the Ninth Circuit that the Navy should limit its use of high-powered sonar [JURIST report]. Bush exempted the Navy from the requirements of the Coastal Zone Management Act (CZMA) [text] on the basis that the use of sonar is of paramount interest to US national security. The Natural Resources Defense Council (NRDC) [advocacy website], which brought the original lawsuit to halt Navy sonar use, warned that sonar is harmful to whales and other marine mammals [press release] while NRDC President Joel Reynolds characterized the presidential waiver as "an attack on the rule of law." NRDC plans to file an appeal to Bush's exemption.

The NRDC has argued that the Navy's decision to use "medium frequency active sonar" without preparing a full environmental impact statement violates several federal laws, including the National Environmental Policy Act [EPA materials], the Endangered Species Act [PDF text], the Administrative Procedures Act [text] and the CZMA. AP has more.






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White House admits to taping over pre-October 2003 e-mail records
Katerina Ossenova on January 16, 2008 1:45 PM ET

[JURIST] The White House admitted late Tuesday that it had recycled its back-up computer tapes of e-mails prior to October 2003. US Magistrate Judge John Facciola ordered [PDF text; JURIST report] the White House earlier this month to report whether e-mails deleted from its servers in fact existed on back-up tapes. White House Office of Administration Chief Information Officer Theresa Payton admitted [sworn statement, PDF] that the White House had destroyed back-up copies of e-mails before October 2003 and only started retaining back-ups at that point. In November 2007, US District Court Judge Henry Kennedy ordered [JURIST report] the White House to preserve all of its e-mail records by saving back-up disks after private advocacy group Citizens for Responsibility and Ethics in Washington (CREW) [advocacy website] requested a temporary restraining order [JURIST report] to stop deletion. In response to Payton's disclosure, CREW said it is now apparent that the White House does not have an effective system [press release] for storing and preserving e-mails and that this failure has likely led to the destruction of over 10 million e-mails. If e-mails were in fact erased, the White House may have violated laws requiring the preservation of documents that fall into the categories of federal or presidential records.

Facciola's order came in advance of a ruling on motions from CREW and the National Security Archive [advocacy website] to expedite discovery to determine what relevant e-mail still exists. The US Department of Justice has been unresponsive about what back-up tapes the White House possesses, although it has said that the White House has maintained all back-up tapes since CREW filed suit. The issue of missing e-mails has been an ongoing controversy in the Bush administration, arising first during the CIA leak investigation, and again last year during controversy over the firings of eight US Attorneys [JURIST news archives]. AP has more.






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Kenya police clash with protesters over disputed election
Katerina Ossenova on January 16, 2008 1:07 PM ET

[JURIST] Supporters of Kenya's main opposition party, the Orange Democratic Movement (ODM) [party website], fought with police Wednesday during demonstrations staged across the country over the disputed re-election [JURIST report] of Kenyan President Mwai Kibaki [official profile]. At least two protesters were killed and another half dozen injured as police tried to disperse the demonstrations by firing tear gas and bullets into the crowds. On Friday, the ODM called for three days of protests [JURIST report] after the African Union failed to facilitate talks between Kibaki and opposition candidate Raila Odinga [campaign profile]. Thirteen nations, including several European Union members and the United States, have threatened to cut off aid to Kenya's government until the crisis is resolved and democracy is restored. Human Rights Watch [advocacy website] has urged the government to ban police from using excessive and lethal force against protesters [press release] and called for peaceful demonstrations.

The controversial presidential vote has sparked simmering ethnic tensions in Kenya [JURIST news archive], where Kibaki has long been accused of using his position to favor members of the Kikuyu tribe. Fueling accusations of malfeasance, Kibaki won the December 27 election despite early opinion polls that placed rival candidate Odinga in the lead. Thousands of opposition supporters took to the streets following the election which prompted the government to temporarily ban public rallies. On January 3, Kenyan Attorney General Amos Wako [official profile] called for an independent investigation [JURIST report] into the vote, citing accusations of election fraud. More than 600 people have already died in violent demonstrations since Kibaki's re-election and a quarter of a million people have been displaced. Reuters has more. AP has additional coverage.






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Supreme Court rules on NY trial judge selection process, trust tax deductions
Jeannie Shawl on January 16, 2008 12:40 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] handed down decisions in two cases Wednesday, including New York Board of Elections v. Torres [Duke Law case backgrounder; JURIST report], where the Court upheld New York's procedure for selecting state trial judges. In New York, judicial candidates are selected through nominations at political conventions rather than through primaries, a process which was found unconstitutional [PDF text; JURIST report] by the US Court of Appeals for the Second Circuit. The Supreme Court reversed, holding that the system does not violate the First Amendment rights of prospective party candidates. Read the Court's opinion [text] per Justice Scalia, along with a concurrence [text] from Justice Stevens, and a second concurrence [text] from Justice Kennedy. AP has more.

In Knight v. Commissioner of Internal Revenue [LII case backgrounder], the Court held that investment advice fees incurred by a trust may only be deducted on the trust's federal tax return to the extent they exceed 2 percent of the trust's adjusted gross income. The Court affirmed the Second Circuit's decision [PDF text] in the case, rejecting the trust's argument that it should be allowed to fully deducted the investment advisory fees. Read the Court's unanimous opinion [text] per Chief Justice Roberts. AP has more.






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Fort Dix plot suspects charged with attempted murder
Brett Murphy on January 16, 2008 10:14 AM ET

[JURIST] Additional charges, including attempted murder, were filed Tuesday against the alleged plotters of an attack on Fort Dix [official website]. The US Attorney for New Jersey declined to say why the attempted murder charge was added, but a grand jury found that there was sufficient evidence to allow the charges. In addition, the indictment accuses the plotters of scouting out other military bases including McGuire Air Force Base and Dover Air Force Base [official websites].

Last May, federal agents arrested [DOJ press release, PDF; JURIST report] Mohamad Ibrahim Shnewer, Dritan Duka, Eljvir Duka, Shain Duka, Serdar Tatar, and Agron Abdullahu after 16 months of surveillance for allegedly planning an attack on Fort Dix. In October, Abdullahu pleaded guilty to lesser charges of "conspiring to provide firearms and ammunition" [press release, PDF; JURIST report] to illegal immigrants. Abdullahu, who was granted asylum in the US eight years ago after fleeing Kosovo, will likely face deportation after serving his sentence. Abdullahu's sentencing is scheduled for early February, while trials for the other men are scheduled to begin [order, PDF] this month. AP has more.






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Federal judge orders Libya to pay $6B to US victims of 1989 air bombing
Leslie Schulman on January 16, 2008 8:20 AM ET

[JURIST] US District Judge Henry Kennedy ruled [PDF text] Tuesday that the Libyan government and six Libyan officials should pay more than $6 billion in damages [plaintiff press release] to families of seven Americans who died in the 1989 bombing of French passenger jet UTA Flight 772 [BBC backgrounder], which killed all 170 people on board. Kennedy ruled last year in Pugh v. Socialist People's Libyan Arab Jamahiriya [complaint, PDF] that Libya was responsible for the bombing, and a trial to determine damages was held in August. Libya has until February 25 to file an appeal.

The Flight 772 bombing was an alleged retaliation against the French for favoring Chad during a border dispute with Libya. Both the Flight 772 bombing and the 1998 bombing of Pan Am Flight 103 [Wikipedia backgrounder] over Lockerbie, Scotland have been linked to Libya. Last year, defense lawyers representing Abdelbaset Ali Mohmed al-Megrahi [CNN profile], the only person convicted in the Flight 103 bombing, requested access to evidence [JURIST report] not previously provided to them that they claim could be used to clear al-Megrahi. Specifically, they sought disclosure of a "missing document," which allegedly contains information about the timer used to bomb Pan Am Flight 103. Reuters has more.






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Conyers calls for special counsel in CIA interrogation videos probe
Leslie Schulman on January 16, 2008 7:54 AM ET

[JURIST] US House Judiciary Committee Chairman Rep. John Conyers (D-MI) [official website] sent a letter [text] Tuesday to Attorney General Michael Mukasey [official profile] urging him to appoint a special counsel to investigate allegations that the US Central Intelligence Agency ordered the destruction of videotapes showing the interrogation of terror suspects [JURIST news archive]. In the letter, Conyers wrote that:

Justice Department regulations require the Attorney General to appoint an outside special counsel when: 1) a "criminal investigation of a person or matter is warranted," 2) the "investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department," and 3) "it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
Conyers asserted that all three of the conditions exist, and has asked Mukasey to either appoint the outside counsel, or to explain why he refrains from doing so under each of the three criteria.

The Department of Justice announced its criminal probe [JURIST report] into the destruction of the tapes earlier this month. John Durham, the first assistant United States attorney in the United States Attorney's Office for the District of Connecticut, is heading the investigation. Existence of the videotapes was verified in November after the CIA admitted it had mistakenly denied [JURIST report] that it had recorded interrogations in a court declaration during the trial of 9/11 conspirator Zacarias Moussaoui. CIA Director Michael Hayden acknowledged [statement text] last month that the CIA had videotaped the interrogation of two al Qaeda suspects in 2002, but said that the tapes had been destroyed in 2005 amid concerns that they could be leaked to the public and compromise the identities of the interrogators. In addition to the DOJ investigation, multiple congressional inquiries have been launched into the tapes' destruction. AP has more.






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DOJ facing legal hurdles in Blackwater Iraqi civilian shooting criminal case: NYT
Leslie Schulman on January 16, 2008 7:05 AM ET

[JURIST] Bringing criminal charges against Blackwater [corporate website; JURIST news archive] employees for the September 16 killings of 14 Iraqi civilians [JURIST report] in West Baghdad would require surmounting numerous legal hurdles, US Department of Justice officials told Congress during a private meeting in December, the New York Times reported Wednesday. The meeting, which was held after a US federal grand jury opened an investigation into the killings [JURIST report], noted legal issues that arose after the US State Department allegedly granted so-called "Garrity protections" [JURIST report] to Blackwater employees involved in the incident. Garrity protections prohibit statements made by public law enforcement officers from being used against them in criminal prosecutions. Given the protections, prosecutors would now have to show that any evidence used against the Blackwater guards in the future was obtained independently of their statements to the State Department. Additionally, the DOJ said it must determine whether federal law applies to Blackwater, but officials reiterated during the meeting that they are still considering filing criminal charges [JURIST report] and that the investigation continues despite the potential legal hurdles.

The Blackwater allegations have caused domestic outrage in Iraq and have prompted legal controversy in the US. In November, the New York Times and the Washington Post [texts] reported that an FBI investigation into the incident concluded that the shootings were unjustified [JURIST report]. Advocacy group Human Rights First [advocacy website] issued a report [PDF text; press release] Wednesday asserting that existing federal law is sufficient to prosecute private contractors using excessive violence in their overseas capacities, and that the US government is to blame for failing to "develop a clear policy with respect to the accountability of private contractors for crimes in Iraq and Afghanistan." The report says that the Military Extraterritorial Jurisdiction Act [S 768 information], which allows criminal prosecution of Department of Defense contractors, could be extended to State Department contractors, but that the US has failed to do so. The New York Times has more.






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