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Legal news from Wednesday, February 11, 2009

Egypt court imprisons opposition leader for illegally entering Gaza
Lucas Tanglen on February 11, 2009 5:36 PM ET

[JURIST] An Egyptian military court on Wednesday sentenced an Islamist opposition leader to two years in prison for illegally entering Gaza. Magdy Ahmed Hussein, leader of the Labor Party [party website, in Arabic], was arrested last month on suspicion of crossing into the territory via an illegal tunnel. Hussein was also fined 5,000 Egyptian pounds, or about USD $900. Hussein's trial has been criticized by human rights groups for the decision to prosecute under military law [EOHR press release] and restrictions placed on Hussein's access to lawyers [ANHRI press release].

Hussein's trial was carried out under the emergency laws [EOHR backgrounder] that have been in effect since the 1981 assassination of Egyptian President Anwar Sadat and were renewed [JURIST report] in May 2008. Human Rights Watch [advocacy website] sharply criticized the renewal [JURIST report], saying the move showed "contempt for the rule of law." Egypt has used military tribunals extensively against members of the Muslim Brotherhood [party website; JURIST news archive].

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Tibet courts convict 76 involved in March demonstrations
Ximena Marinero on February 11, 2009 5:21 PM ET

[JURIST] Tibetan courts have convicted 76 people involved in the March 2008 Lhasa riots [Free Tibet backgrounder; JURIST news archive], according to official remarks [Xinhua report] on Tuesday by vice-president of the Tibet regional People's Congress Nyima Cering. The high ranking Tibetan official did not discuss sentence terms at the press conference, part of a state sponsored tour of the region for foreign media. Non Gyal, a monk who interrupted a press conference one year ago to tell the foreign media that the government was lying to them about the aftermath of the riots, was also present. He described his prior statements as misguided, and said that he had suffered no repercussions after the riots.

The March 2008 riots coincided with Olympic Games publicity in the region and the anniversary celebration of the failed Tibetan uprising against China. At least 18 people died and 1200 were arrested, but several reports allege much higher numbers. China is wary of disturbances in this year's 50th anniversary celebrations, only a month away, and already there are reports [AP report] that 81 people in Tibet have been detained for alleged criminal activity. In November 2008, the UN Committee Against Torture [official website] recommended [press release; JURIST report] that China ensure prompt access to an independent lawyer, independent medical care, and the right to lodge confidential complaints for all persons detained in connection with the March 2008 riots.

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Khadr lawyers propose plan for Canadian's repatriation from Guantanamo
Lucas Tanglen on February 11, 2009 4:13 PM ET

[JURIST] Lawyers for Omar Khadr [DOD materials; JURIST news archive] presented a plan Wednesday to return the Guantanamo Bay [JURIST news archive] detainee to Canadian society. The outline, laid out at a news conference [Toronto Star report] in Toronto, calls for assessments of the 22-year-old's health and education, and proposes he be housed in a foster home. Dennis Edney, one of Khadr's lawyers, called on Canadian Prime Minister Stephen Harper [official profile] to press for a repatriation plan when he meets with visiting US President Barack Obama [official profile] in Ottawa on February 19. Opposition members also urged Khadr's return to Canada in an open letter [text, PDF] to Harper and Obama.

In January, a military judge suspended military commission proceedings against Khadr, who has admitted to throwing a hand grenade that killed a US soldier in Afghanistan [JURIST reports]. In April 2007 Khadr was charged [charge sheet, PDF; JURIST report] with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.

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Kenya delays vote on special tribunal following bribery allegations
Jake Oresick on February 11, 2009 12:25 PM ET

[JURIST] The Kenyan Parliament [official website] on Tuesday delayed voting on a constitutional amendment that would create a special tribunal for the country, following allegations by MP Gitobu Imanyara [official profile] that government officials tried to bribe or blackmail MPs into voting for the bill. President Mwai Kibaki [official website] recently made an appeal [press release] for MPs to support the court, which would be responsible for trying those suspected of taking part in violence following the country's disputed December 2007 elections [JURIST report], but groups including the National Council of Churches of Kenya [Global Ministries backgrounder] have called for the proposed amendment to be heavily scrutinized [Capital News report] in light of the allegations [BBC report]. Those who oppose creating the special tribunal also argue that the country's judicial system would not be independent enough to consider the cases properly. Others, including International Commission of Jurists-Kenya [advocacy website], have continued to support its creation. Voting on the amendment has been postponed [Standard report] until next week, and if the tribunal does not begin hearings by March 1, a list of suspects will be sent to the International Criminal Court (ICC) [official website] for prosecution.

Approximately 1,500 people were killed in violence that followed allegations of fraud [JURIST report] in the country's presidential election. The disputed tribunal was proposed to a commission [JURIST report] charged with investigating the violence after Kibaki and opposition candidate Raila Odinga approved a power-sharing agreement [JURIST report] designed to quiet the unrest.

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Indonesia court dismisses corruption suit against Suharto son
Kayleigh Shebs on February 11, 2009 12:06 PM ET

[JURIST] The Central Jakarta District Court on Wednesday dismissed a corruption lawsuit against Hutomo Mandala Putra [BBC profile], son of former Indonesian President Haji Mohammed Suharto [BBC profile; JURIST news archive]. The suit against Putra, also known as "Tommy Suharto," had been brought by the state and alleged [Jakarta Post report] that he had defrauded the government out of more than $300 million by selling a state-owned car company, PT Timor Putra Nastional. Anti-corruption activists condemned [AFP report] the court's decision to dismiss the charges, citing the close connections between many government officials and the Suharto family. Lawyers for the Indonesian government said they plan to appeal the ruling.

Last year, Putra was cleared of separate civil allegations [JURIST report] involving an allegedly illegal land exchange scam connected to a governmental agency. In October 2006, Putra was released from prison by court order [JURIST report] after serving a sentence for hiring a hitman to kill a Supreme Court judge [BBC report] who had found him guilty in an earlier corruption case.

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UN SG Ban urges Bashir to comply with possible ICC indictment
Caitlin Price on February 11, 2009 11:58 AM ET

[JURIST] Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] must cooperate with any indictment or decision [press conference transcript] the International Criminal Court (ICC) [official website] may issue against him, UN Secretary-General Ban Ki-Moon [official website] said Tuesday. On Monday, Ban had a rare meeting with Bashir at a UN-African Union summit [UN News Centre report], where Ban urged Bashir to heed any ICC decisions and protect the 20,000 UN peacekeepers located throughout Sudan from public backlash. Speaking at a press conference in New York on Tuesday, Ban said:

Whatever the circumstances or decisions of the ICC may be, it will be very important for President Bashir and the Sudanese Government to react very responsibly and ensure the safety and security of the United Nations peacekeepers, and protect the human rights of all the population there, and also faithfully implement the Comprehensive Peace Agreement. And he should fully cooperate with whatever decisions that the ICC makes. This is a very important fundamental principle that he should take.
ICC chief prosecutor Luis Moreno-Ocampo [official profile] has sought an arrest warrant [JURIST report] for Bashir on charges of genocide, war crimes, and crimes against humanity committed in Darfur, and the ICC is expected to decide whether to issue the warrant as early as this month.

Last week, Sudan and the African Union reissued a request to the UN Security Council [JURIST report] to delay for one year any ICC indictment for Bashir. Under Article 16 of the Rome Statute [text], the UN may pass a resolution that defers a prosecution in the ICC for 12 months. The African Union fears that an indictment would pose a threat to the peace process [JURIST report] in the Sudan. Ban has previously expressed concern that an arrest warrant for Bashir would create an unfavorable Sudanese reaction, with his latest report [text; UN News Centre report] stating a fear that the Sudanese government "may redefine its relationship with UNMIS (the UN Mission in Sudan that is mainly concerned with helping to enforce the CPA) should an arrest warrant be issued against President al-Bashir." A Security Council resolution staying the ICC's indictment would require a majority of nine votes and the concurring votes of all five permanent members.

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Cuba travel legislation introduced in US House
Jake Oresick on February 11, 2009 11:52 AM ET

[JURIST] A bill [text] has been introduced into the US House of Representatives [official website] that would end the ban on travel by US residents to Cuba. The Freedom to Travel to Cuba Act, introduced last week by Representative William Delahunt (D-MA) [official website], would allow all US citizens and legal residents to visit the island. Exceptions would include instances where the US is at war with Cuba or during times of armed conflict between the countries. The bill, which has been referred to the Committee on Foreign Affairs [official website], is sponsored by four Democrats and four Republicans.

In 2004, the Bush administration tightened travel restrictions to Cuba [JURIST report], invoking its status as a state sponsor of terrorism. Under the current law, US residents may visit relatives on the island once every three years. Residents with no relatives there are generally unable to visit. A similar bill [materials] was introduced in the last Congress, but never made it out of committee.

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State Department defends silence during UN rights reviews
Devin Montgomery on February 11, 2009 11:29 AM ET

[JURIST] US State Department [official website] spokesperson Robert Wood on Tuesday defended the silence of the US delegates [press conference transcript] during the UN Human Rights Council [official website] Universal Periodic Review (UPR) [materials] of potential rights abuses, saying that the US is not actively participating because the administration of President Barack Obama [official website] is still deciding how it wants to interact with the Council. Wood said that the US had representatives attending and monitoring the UPR sessions, and that its abstention from the reviews did not mean that human rights were not a priority for the administration. He also said that Secretary of State Hillary Clinton [official website] intends to address the rights records of China and Indonesia in an upcoming trip to Asia:

[F]or one, we're reviewing our policy and strategy with regard to the Human Rights Council. Certainly, I can understand many people want to see us enunciate our policies very early on. You know, it does take time. We want to make sure that we’ve done a thorough review and that we not rush this. We want to get it right. Let me just be very clear: With this President and this Secretary, human rights is a very, very high priority. We’re very concerned – we’ve been very concerned about the operation of the Human Rights Council, and we want to take a look and see how we may engage with the Human Rights Council. But this is all part of the review, and as soon as we have completed that review, we will certainly make clear what our policies are. ...

[O]n this trip, human rights is going to be an important issue. The Secretary will raise the issue, when appropriate, where she thinks she can have the most effect, and you can count on that. I don’t think anybody is going to be able to tell you exactly, well, in this particular meeting, you know, the Secretary is going to raise issue X or Y. She is going to do what she thinks is best in terms of trying to communicate our goals and objectives on the human rights front, and you can rest assured that this is an issue that she cares deeply about and that will come up on this – during this visit. And she will raise it, as I said, in an appropriate time.
Wood's statements come after the administration has received criticism from both human rights groups and US politicians for not taking part [press release] in the UPR sessions. In his remarks on the decision [press release], US Representative Frank Wolf (R-VA) criticized the administration for failing to use the UPR process to address abuses it has long condemned:
The United Nations Human Rights Council is now conducting reviews of the human rights records of 16 countries-among which are China, Cuba, Saudi Arabia and Russia.

While the United States is not a member of the Human Rights Council, every member of the U.N. has an opportunity to pose questions and raise concerns about the human rights record of the country being reviewed.

I was shocked and disappointed to learn that for the last week, the U.S. delegation has been silent. How can America be say nothing about four of the worst offenders of human rights and religious freedom in the world? ...

This administration made a pledge to place human rights at the top of its agenda. The administration is off to the wrong start on making human rights a priority.
China, the subject of one of the reviews, defended itself in a report [text, PDF; JURIST report] to the UPR earlier this month, saying that it was taking steps to improve its legal system [press release], promote democracy, and encourage non-governmental organizations (NGOs).

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Afghan justice ministry attacked by Taliban
Caitlin Price on February 11, 2009 10:25 AM ET

[JURIST] Taliban [JURIST news archive] insurgents on Wednesday targeted the Afghan Ministry of Justice [official website], the Prisons Directorate and other government buildings in coordinated attacks in the capital city of Kabul. Early estimates reported 28 killed and more than 60 injured. At least five gunmen stormed the Justice Ministry, several outfitted with explosive devices that apparently did not detonate. A Taliban spokesperson reportedly confirmed that 16 insurgents had been deployed [AFP report] to the city in response to the alleged mistreatment of Taliban prisoners. At least eight attackers, including two suicide bombers, were killed. The attacks came one day before the scheduled visit [DOS press release] of US Special Representative for Afghanistan and Pakistan Richard Holbrooke [appointment transcript], an information-gathering trip set to focus on expanding security in Afghanistan.

Although this is the first major Taliban attack on the Justice Ministry building, judges and detention have previously been targeted. In September, Central Narcotics Tribunal Appeals Court Judge Alim Hanif was killed in Kabul [UPI report]. In early August, a judge in southern Helmand province [AFP report] and the chief judge of Khost province [VOA report] were shot and killed by unidentified gunmen said to be connected to the Taliban. In June, approximately 870 inmates escaped [JURIST report] from the main prison in Kandahar City in southern Afghanistan when members of the Taliban conducted a bomb and rocket attack on the facility.

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Europe court dismisses challenge to data retention directive
Devin Montgomery on February 11, 2009 8:22 AM ET

[JURIST] The European Court of Justice [official website] on Tuesday dismissed a challenge [case materials] to a European Commission [official website] directive [EC 2006/24 text] requiring telecommunication companies operating in European Union (EU) [official website] member countries to retain phone and email data for at least six months. The rule was designed to help law enforcement investigate gang, terrorism and other criminal activity, but Ireland challenged the directive, arguing that the it violates European Convention on Human Rights [text] Article 8 privacy protections and was inappropriately based on a section of the European Community Treaty (ECT) [Article 95 text] designed to facilitate trade rather than combat crime. Addressing only the question of whether the rule was appropriately based on the ECT's trade provision, the court held that the rule was valid because it standardized costs associated with retaining the data across the EU:

As is apparent ... the Community legislature started from the premiss [sic] that there were legislative and technical disparities between the national provisions governing the retention of data by service providers ...

... [I]t is apparent that the differences between the various national rules adopted on the retention of data relating to electronic communications were liable to have a direct impact on the functioning of the internal market and that it was foreseeable that that impact would become more serious with the passage of time.

Such a situation justified the Community legislature in pursuing the objective of safeguarding the proper functioning of the internal market through the adoption of harmonised rules.
Slovakia joined Ireland in the challenge. Spain and the Netherlands joined the EC arguing in support of the directive.

The controversial rule was approved [press release, PDF; JURIST report] by EU justice and interior ministers in February 2006 after it was passed by the European Parliament [JURIST report] in December 2005. Its passage came only after a year and a half of debate [JURIST news archive] among the member states over privacy issues, during which Ireland and Slovakia expressed their intent to challenge the rule.

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Obama administration to reverse Bush offshore drilling policy
Andrew Gilmore on February 11, 2009 7:42 AM ET

[JURIST] US Secretary of the Interior Ken Salazar [official profile] announced plans Tuesday to reverse offshore drilling policies [press release] established by former US President George W. Bush [JURIST news archive] at the end of his presidency. The move comes as part of a larger effort by the administration of President Barack Obama [official profile] to create a comprehensive energy plan. The new plan involves extending the public comment period on a proposed 5-year plan for oil and gas development on the US Outer Continental Shelf (OCS) by 180 days, assembling a detailed report from Department of the Interior (DOI) [official website] agencies on conventional and renewable offshore energy resources, holding four regional conferences to review these findings, and expediting renewable energy rulemaking for the OCS. In remarks [text] delivered Tuesday in conjunction with the announcement, Salazar said:

We need a new, comprehensive energy plan that takes us to the new energy frontier and secures our energy independence. We must embrace President Obama's vision of energy independence for the sake of our national, economic, and environmental security.

Today, I am announcing a new way forward for our offshore energy resources. It will restore order to a broken process, so that we can make decisions about the OCS based on sound information.
In October, the US House of Representatives passed legislation [JURIST report] to lift an offshore drilling [JURIST news archive] ban. That same month, the US Senate approved [JURIST report] the expiration of a moratorium on offshore drilling that denied the DOI congressional funds to pursue drilling exploration on the Atlantic and Pacific coastlines. In July, Bush lifted an executive ban on offshore oil drilling [JURIST report] put in place during his father's presidential administration. In June, Bush called on Congress to relax restrictions on oil exploration [JURIST report], saying that it should also allow drilling to begin in the Arctic National Wildlife Refuge [official website] in Alaska. Bush argued that resources currently off-limits to energy companies could offset rising fuel prices. Environmental organizations have criticized efforts to expand oil drilling [WWF report] in the Arctic, calling for increased research into energy conservation and renewable resources instead. Critics have also said that offshore development will require several years and a massive infrastructure that could impact local wildlife.

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South Korea appeals court affirms landmark right-to-die ruling
Andrew Gilmore on February 11, 2009 6:59 AM ET

[JURIST] A South Korea [JURIST news archive] appellate court on Tuesday upheld a landmark lower court ruling authorizing removal of life-support from a comatose woman. Tuesday's decision by the Seoul High Court affirmed the December ruling of the Seoul Western District Court that ordered Yonsei Severance Hospital [hospital website] to remove the 77-year-old woman from a life-support respirator she has relied on for artificial breathing since falling into a vegetative state in February 2008. While refusing to characterize the action as "voluntary euthanasia", the High Court issued guidelines [Joong Ang Daily report] for removing patients from life support, including ensuring that the patient has no possibility of recovery and had previously formed a serious intention of stopping treatment, ensuring that the treatment to be stopped must be linked to maintaining the patient's current state, and mandating that doctors not be allowed to stop pain-reducing treatment. The Yonsei Severance Hospital intends to appeal the High Court's ruling [Korea Herald report] to the Supreme Court of Korea [official website].

Several courts and governments have recently tackled legal issues surrounding the withdrawal of life-support, food and treatment from persons in a persistent vegetative state. Earlier this week Italian lawmakers indicated that they would proceed with a vote on right-to-die legislation despite the death of comatose patient Eluana Englaro [JURIST reports] Monday after the removal of her feeding tube last Friday. In November, the Mexican Senate approved a law [JURIST report] that would allow terminally ill patients to refuse medical treatment. In 2005, the Terri Schiavo case [JURIST report] highlighted similar issues in the United States.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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