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Legal news from Wednesday, March 19, 2008




US military judge rules Hamdan lawyers can question Guantanamo detainees
Deirdre Jurand on March 19, 2008 6:18 PM ET

[JURIST] US military judge Navy Capt. Keith Allred has affirmed [ruling, PDF] a prior ruling [PDF text; JURIST report] that lawyers for Guantanamo Bay detainee Salim Ahmed Hamdan [DOD materials; JURIST news archive] may send written questions to Khalid Sheik Mohammed [BBC profile] and other alleged high-level al Qaeda detainees. In a Friday ruling made public Wednesday, Allred found that questioning the detainees could lead to the discovery of evidence on the issue of whether Hamdan was an al Qaeda agent who conspired in the USS Cole or Sept. 11 attacks or whether he simply worked as Osama bin Laden's driver and had no involvement in the attacks.

In a motion [PDF text] filed in January, Hamdan's lawyers requested face-to-face interviews, but in February Allred limited the discovery to written questions, which must be reviewed by an independent security officer. Any answers will be censored according to national security concerns. Also in February, Hamdan's lawyers urged Allred to drop the charges [JURIST report] against Hamdan. In December, Allred denied [JURIST report] a request by Hamdan's lawyers for immediate access to top terrorism suspects, citing security concerns that he addressed in his later rulings. The Miami Herald has more.






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UN rights report urges Kenya against amnesty for human rights violators
Alexis Unkovic on March 19, 2008 4:26 PM ET

[JURIST] Kenya [JURIST news archive] should not grant amnesty to anyone who committed human rights violations in the wake of December's disputed presidential election [JURIST report], according to a report [PDF text; press release] issued Wednesday by the Office of the UN High Commissioner for Human Rights [official website]. The report offered nine recommendations for re-establishing stability in the country, including establishing a Truth Justice and Reconciliation Commission, passing institutional reforms, and enforcing victim and witness protection. The five-member team reached its conclusions after conducting a three-week fact-finding mission in the country in February. Reuters has more. The UN News Centre has additional coverage.

On Tuesday, the Parliament of Kenya voted unanimously [JURIST report] to approve a power-sharing agreement [JURIST report] between Kenyan President Mwai Kibaki [official profile] and opposition leader Raila Odinga [campaign profile]. The Kenya Accord and Reconciliation Act 2008 [text], intended to end violence sparked by the country's controversial 2007 presidential election, names Odinga as the nation's first Prime Minister. The agreement has been praised by the US State Department and former UN Secretary General Kofi Annan, who helped broker the deal.






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Iraq Presidency Council withdraws objections to local elections law
Alexis Unkovic on March 19, 2008 3:51 PM ET

[JURIST] Iraq's Presidency Council Wednesday withdrew its objections [JURIST report] to a provincial elections law detailing the relationship between Iraq's central and local governments. In a statement issued Wednesday, the three-member Presidency Council, comprised of Iraqi President Jalal Talabani, Vice President Adel Abdul-Mahdi [BBC profiles], and Vice President Tareq al-Hashemi [personal website, in Arabic; EPIC profile, PDF], indicated that the law may now take effect without any changes. The election law represents one of the 18 benchmarks [JURIST report] identified by the White House last year as important steps towards stability in Iraq. The New York Times has more.

The draft local elections law was part of a package of legislation approved [JURIST report] by the Council of Representatives earlier in February that also included the 2008 budget and an amnesty bill [JURIST report] that will lead to the release of roughly 5,000 prisoners. The Presidency Council approved both the budget and the amnesty bill on February 27.






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Supreme Court hears arguments in California labor, paralegal fees cases
Alexis Unkovic on March 19, 2008 3:09 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Wednesday in Chamber of Commerce v. Brown [LII case backgrounder; merit briefs], 06-939, a case where the Court is reviewing the constitutionality of a 2000 California law [Assembly Bill 1889 text] that prohibits employers from using certain funds they receive from the state to influence union elections. During arguments Wednesday, Justice Antonin Scalia and Chief Justice John Roberts took issue with the contention that the California law is neutral, while Justices Stephen Breyer and Ruth Bader Ginsburg indicated support for the view that California should be able to limit how employers spend state-provided funds. In 2006, the US Court of Appeals for the Ninth Circuit upheld [PDF text] the California law, ruling that it was neither preempted by the National Labor Relations Act [text] nor rendered unenforceable by the US Constitution's Supremacy Clause. The Court granted certiorari [JURIST report] in November 2007. AP has more.

The Court also heard arguments [transcript, PDF] Wednesday in Richlin Security Service v. Chertoff [LII case backgrounder; merit briefs], 06-1717, a case where the considered whether paralegal services can be recovered at the market rate when determining the payment of attorneys' fees. The Court granted certiorari [JURIST report] in November, and a decision in this case would resolve a split among the circuit courts of appeal. The US Court of Appeals for the Federal Circuit ruled [opinion, PDF] that the Equal Access to Justice Act [text] permits only the reimbursement of paralegal services as the cost of the expense to the attorneys rather than as fees at the market rate.






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Michigan affirmative action ban ruled constitutional
Andrew Gilmore on March 19, 2008 2:56 PM ET

[JURIST] US District Judge David Lawson of the United States District Court for the Eastern District of Michigan on Tuesday dismissed with prejudice [opinion, PDF] a constitutional challenge to Proposal 2 [text; JURIST news archive], an amendment to the Michigan Constitution [PDF text] banning affirmative action in public employment, public education, and state contracting. The case was a consolidation of two lawsuits filed after the approval of Proposal 2 [JURIST report] in November 2006. The first action [complaint, PDF; JURIST report] was brought by a number of advocacy groups, including By Any Means Necessary (BAMN) [advocacy website], and alleged that Proposal 2 violated the US Constitution. The second action [complaint, PDF; ACLU press release] was brought by students and advocacy groups including the American Civil Liberties Union against state officials and Michigan public universities and colleges, alleging that Proposal 2 was unconstitutional as it applied to public colleges and universities. Lawson found that Proposal 2 was "facially neutral" regarding racial discrimination and did not violate the US Constitution. BAMN has said it will appeal the ruling [press release]. AP has more. The Detroit Free Press has local coverage.

In 2003, the US Supreme Court ruled that the federal constitution permits the University of Michigan to consider race as a factor in the admissions process [JURIST symposium], upholding the University law school admissions policy [Grutter opinion text], while rejecting the more rigid undergraduate admissions system as discriminatory [Gratz opinion text].






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Italy judge orders CIA rendition trial to resume
Brett Murphy on March 19, 2008 10:55 AM ET

[JURIST] Italian Judge Oscar Magi on Wednesday ordered the continuation of the trial of 26 Americans [JURIST news archive] and several former Italian intelligence officials for the 2003 abduction and rendition [JURIST news archive] of Egyptian cleric Hassan Mustafa Osama Nasr [JURIST news archive]. Magi suspended [JURIST report] the trial in October pending a ruling from the Constitutional Court of Italy [official website] on a petition [JURIST report] filed by the Italian government to dismiss all charges against the defendants. Magi resumed the trial after months of inaction from the high court, saying that the continuation of the trial will not harm the defense in any way.

Nasr, also known as Abu Omar, was seized on the streets of Milan by CIA agents with the help of Italy's Military Intelligence and Security Service. He was then allegedly transferred to Egypt and turned over to Egypt's State Security Intelligence, where he said he was tortured before being released [JURIST reports] in February 2007. The 26 Americans, most of whom are CIA agents, are being tried in absentia. Reuters has more.






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Federal magistrate orders White House response on e-mail backups
Mike Rosen-Molina on March 19, 2008 10:40 AM ET

[JURIST] US Magistrate Judge John Facciola Tuesday ordered [PDF text; CREW press release] the White House to explain why it should not be required to create forensic copies of all e-mails passed through computers in the Executive Office of the President [official website] between March 2003 to October 2005. In his order, Facciola referred to a January admission by the White House that it had recycled back-up computer tapes of e-mails [JURIST report] prior to October 2003, meaning that some of the e-mails may be lost, and suggested that an order to create duplicates would prevent similar losses in the future. White House officials have until Friday to respond. AP has more.

In November 2007, US District Court Judge Henry Kennedy ordered [JURIST report] the White House to preserve all of its e-mail records after private advocacy group Citizens for Responsibility and Ethics in Washington (CREW) [advocacy website] and the independent National Security Archive [institute website] requested a temporary restraining order [JURIST report] to stop deletion. The issue of missing e-mails has been an ongoing controversy in the Bush administration, arising first during the CIA leak investigation into the revelation of Valerie Plame's identity, and again during controversy over the firings of eight US Attorneys [JURIST news archives]. If e-mails were in fact erased, the White House may have violated the Presidential Records Act [text], which requires the preservation of documents that fall into the categories of federal or presidential records.






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Supreme Court overturns Louisiana death sentence in race-based jury challenge case
Jeannie Shawl on March 19, 2008 10:09 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled Wednesday that a Louisiana death sentence should be overturned because the trial judge "committed clear error" in ruling on the defendant's objection to a prosecution peremptory jury challenge, which the defendant argued was based on race. The ruling came in Snyder v. Louisiana [LII case backgrounder; JURIST report], where Allen Snyder was convicted and sentenced to death for the murder. The Supreme Court reversed the Louisiana Supreme Court's decision [PDF text] to let Snyder's conviction stand.

The Snyder case gained notoriety when the prosecutor drew comparisons between the proceeding and the trial of OJ Simpson [CourtTV case materials] during sentencing when urging the jury to impose the death penalty. Snyder had argued that the prosecutor improperly used the comparison to create a race-based rationale for imposing the death penalty, but that issue was not addressed by the Supreme Court. Read the Court's opinion [text] per Justice Alito, along with a dissent [text] from Justice Thomas. AP has more. SCOTUSblog has additional coverage.






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Germany high court blocks data-collection law
Brett Murphy on March 19, 2008 9:39 AM ET

[JURIST] Germany's Federal Constitutional Court [official website] on Wednesday placed an injunction [ruling; press release, both in German] on a federal law that gave the government the ability to access and collect Internet and telephone data. The law, which went into effect in January, allowed the government to collect information such as e-mail addresses, numbers dialed, and lengths of calls from service providers. The injunction permits the data to be saved, but requires that the government have a warrant to access the information and may only do so in extreme situations.

In February, the Constitutional Court ruled that a 2006 North-Rhine Westphalia [state government website, in German] law authorizing intelligence agents to search personal computers, networks, and Internet communications was unconstitutional [ruling, in German; JURIST report]. Last year, the German Federal Court of Justice [official website, in German] ruled [text, in German, JURIST report] that police in Germany were not permitted to secretly access computer and Internet data stored on suspects' computers without proper authorization. DPA has more.






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Fiji government defends coup as legal in court hearing
Brett Murphy on March 19, 2008 9:26 AM ET

[JURIST] Lawyers for the current acting Fijian government argued in court Wednesday that the December military coup [JURIST report] was legal because Fijian President Ratu Josefa Iloilo [official profile] had reserve powers that permitted the president to dismiss the government and appoint new leaders. Former Fijian Prime Minister Laisenia Qarase [BBC profile] brought the lawsuit [JURIST report] against the acting government, saying that the coup that ousted him was illegal, and that it was orchestrated by armed forces chief and current self-appointed prime minister Commodore Frank Bainimarama [BBC profile]. Lawyers for the acting government say that Bainimarama sought and received permission from Iloilo to dismiss Qarase as prime minister, but Qarase argues that Bainimarama threatened Iloilo with a complete takeover if he did not agree to the dismissal.

Less than two days after December's coup, an interim Prime Minister installed by the military characterized the coup as "illegal" [JURIST report], but defended it as necessary. The case was to be heard by a three-judge panel led by Acting Chief Justice Anthony Gates, who was appointed [press release] after Bainimarama suspended former Chief Justice Daniel Fatiaki [JURIST report]. AFP has more.






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Illinois pharmacists ask state high court to overturn emergency contraception rule
Brett Murphy on March 19, 2008 9:01 AM ET

[JURIST] A lawyer representing a group of Illinois pharmacists asked the state supreme court Tuesday to strike down a 2005 emergency rule [press release] issued by Illinois Governor Rod Blogjevich which requires pharmacies to fill prescriptions for contraceptives, including emergency contraception. During oral arguments [recorded video], the pharmacists' lawyer argued that the rule requires them to dispense drugs contrary to their personal morals, or risk losing their license, in violation of the state Health Care Right of Conscience Act [text]. Lawyers for the state said that the pharmacists do not have standing because none of them have been penalized under the rule, nor have they shown that they are at risk of such penalties.

Last year, a separate group of Illinois pharmacists agreed to settle similar claims [JURIST report] under a deal that would permit them to refuse to fill prescriptions for the drug, so long as the pharmacy works with another pharmacist by phone to dispense the contraceptive. Final approval of the settlement is still pending. In a different ongoing Illinois lawsuit for monetary damages [JURIST report] brought by four pharmacists against Walgreens [corporate website], the pharmacists say they were illegally fired after refusing to sign a pledge to dispense the "morning-after" pill. Washington state has a similar law requiring pharmacists to dispense emergency contraceptives; a federal judge suspended the Washington law [JURIST report] late last year. AP has more.






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Inter-American rights court to hear Mexico 'dirty war' case
Leslie Schulman on March 19, 2008 8:45 AM ET

[JURIST] The Mexican Commission for the Defense and Promotion of Human Rights [advocacy website] has filed a complaint [press release, PDF] with the Inter-American Court of Human Rights, part of the Organization of American States [official websites], against Mexico, alleging that the Mexican government failed to adequately respond to the 1974 disappearance of guerrilla sympathizer Rosendo Radilla during Mexico's so-called "dirty war" [National Security Archive backgrounder] against leftist activists in the 1960s and 70s. According to the complaint, filed Saturday, Mexico has failed in its response to investigate Radilla's disappearance and to bring to justice those responsible. This is the first time an international court will hear a case brought against Mexico for disappearances during its "dirty war."

Similar cases have been brought in local courts, stemming from Mexico's "scorched-earth" campaign in the 1960s and 1970s which, according to a 2006 report [JURIST report], resulted in crimes against humanity, including genocide, torture, executions and disappearances. The report outlines alleged crimes committed by Mexican military and security forces under three different presidents during the nation's 18-year campaign, including the execution of hundred of citizens and suspected guerrillas, and an attempt to deny food to residents where leftist guerrillas operated. AP has more.






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US Education Department relaxing some No Child Left Behind rules
Leslie Schulman on March 19, 2008 7:58 AM ET

[JURIST] US Secretary of Education Margaret Spellings [official profile] Tuesday announced [speech text] a new pilot program [press release] under the federal No Child Left Behind program [official website] that is aimed at narrowing statewide education reform to focus on schools most in need of "dramatic intervention":

One thing we know for sure is that we must take dramatic action to improve our lowest-performing schools. We also know that not all struggling schools are alike, and that many states have identified a wide range of schools for improvement. That's why today, I'm announcing a new pilot that will help states improve underperforming schools. This "differentiated accountability" program will invite up to 10 states to create more nuanced ways of distinguishing between schools in need of dramatic intervention, and those that are closer to meeting goals.

In keeping with previous efforts, we will give preference to states that have been pioneers for reform - as Maryland, North Dakota, Louisiana, and South Dakota have been leaders on accountability, and Massachusetts has been a leader on standards. We will also prioritize applications from states that have identified many schools for improvement.

The goal is to help educators act now to help schools in every stage of improvement. We can't afford to let struggling students continue to slide downhill.

This is not one-sided flexibility. To be eligible, states must commit to taking serious action. They must have approved assessment systems to measure student achievement. They must publish timely, transparent information about educational progress and challenges, as well as options for parents. And they must commit to building their capacity for reform, and focusing their most significant actions around their lowest-performing schools, such as the so-called "dropout factories" that produce up to half of high school dropouts. By evaluating participants annually, my department will help identify proven methods for others to follow.
Under the No Child Left Behind Act [text], signed into law in 2002, nearly one-tenth of the nation's schools have been designated as "in need of improvement," overwhelming state resources. The new program would give states more flexibility to concentrate resources on schools most in need of improvement and reduce state accountability for schools that only marginally fail to meet the requirements of No Child Left Behind.

Several teachers' organizations, including the National Education Association (NEA) [advocacy website; press release], welcomed the new program, which is similar to amendments proposed to the Act by Democrats last year. In 2005, the Education Department eased some of the law's rules [JURIST report], allowing schools to base credit on the academic growth of individual students, as opposed to measuring the progress of all students against a federally mandated standard. The New York Times has more.





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US Marine charged with murder in Fallujah detainee death
Leslie Schulman on March 19, 2008 7:24 AM ET

[JURIST] A US Marine sergeant was charged [press release] Tuesday with one count of murder and one count of dereliction of duty for his involvement in the shooting of a detained Iraqi insurgent during the Multinational National Force-Iraq's November 2004 offensive [GlobalSecurity backgrounder] in Fallujah [USMC timeline; JURIST news archive]. Sgt. Ryan Weemer, who was a corporal at the time of the battle [CNN report], admitted during a polygraphed job interview in 2006 with the US Secret Service that he had witnessed indiscriminate killings in Fallujah, which spurred investigations of at least 10 Marines [JURIST report] by the Naval Criminal Investigative Service (NCIS) [official website]. Weemer had completed his active duty and was promoted to sergeant in 2006 as a reservist but was reactivated earlier this week, which permits the military to subject him to full court-martial. If convicted, Weemer faces life in prison.

The charges against Weemer follow December charges against Marine Sgt. Jermaine A. Nelson for murder and dereliction of duty, and August charges [JURIST reports] against former Marine Sgt. Jose Nazario for voluntary manslaughter in connection with the same incident. Nazario has been charged in federal court. Military journalist Nathaniel Helms has allegedly corroborated the account, reporting that he saw the Marines execute subdued Iraqi prisoners, whose bodies were later buried under rubble from an air strike. AP has more.






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