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Legal news from Wednesday, February 25, 2009

Supreme Court decides First Amendment, antitrust cases
Devin Montgomery on February 25, 2009 2:33 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] decided two cases Wednesday. In Pleasant Grove City v. Summum [Cornell LII backgrounder; JURIST report] the Court ruled [opinion, PDF] unanimously that privately donated monuments displayed in public parks qualify as government speech, and that their display is therefore not subject to freedom of expression [LII backgrounder] considerations that apply to private speech. The case involved Pleasant Grove's refusal to accept the donation of a monument displaying the Seven Aphorisms of the Summum religion, even though it had accepted a monument displaying the Judeo-Christian Ten Commandments. Reversing a decision [opinion, PDF] by the US Court of Appeals for the Tenth Circuit, the court held that the display of a permanent monument on government land was best construed as speech of the government itself, and subject only to the restrictions of the Establishment Clause [LII backgrounder], which prohibits the government from creating a state religion. Writing for the majority, Justice Samuel Alito wrote that Pleasant Grove need not endorse a particular meaning of text included on a monument in order for the placement of the monument itself to be considered government expression:

Contrary to respondent’s apparent belief, it frequently is not possible to identify a single “message” that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor. By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct, but the intended and perceived significance of that conduct may not coincide with the thinking of the monument’s donor or creator. Indeed, when a privately donated memorial is funded by many small donations, the donors themselves may differ in their interpretation of the monument’s significance. By accepting such a monument, a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument.
Justices John Paul Stevens, Antonin Scalia, Stephen Breyer and David Souter [concurrence texts] all filed concurring opinions.

Also Wednesday, the Court ruled [opinion, PDF] unanimously in Pacific Bell v. Linkline Communications [Cornell LII backgrounder; JURIST report] that telecommunication product retailers cannot pursue an antitrust claim against a telecommunication company that acts as both a retailer and wholesaler of the product when the defendant company is not under an obligation to sell the product to competing retailers. Linkline, a DSL retailer, had sued Pacific Bell, both a DSL retailer and wholesaler, for "price squeezing," a practice where a company both raises the wholesale price at which it offers a product to competitors while lowering the price at which it sells the product at retail, under a federal law [15 USC § 2 text] prohibiting monopolies. Reversing a decision [opinion, PDF] by the US Court of Appeals for the Ninth Circuit, the court rejected Linkline's claim, reasoning that a change [FCC order, PDF] in Federal Communications Commission regulations no longer required Pacific Bell to sell DSL lines to other retailers, and that there was no evidence that Pacific Bell had been participating in predatory retail pricing:
Plaintiffs’ price-squeeze claim, looking to the relation between retail and wholesale prices, is thus nothing more than an amalgamation of a meritless claim at the retail level and a meritless claim at the wholesale level. If there is no duty to deal at the wholesale level and no predatory pricing at the retail level, then a firm is certainly not required to price both of these services in a manner that preserves its rivals’ profit margins.
Chief Justice John Roberts wrote the opinion of the court. Justice Breyer wrote a concurrence [text].

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Israel lobbyists may use classified documents in espionage defense: Fourth Circuit
Jake Oresick on February 25, 2009 1:33 PM ET

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] Tuesday that two former lobbyists may use classified documents in their defense against charges [case materials] under the 1917 Espionage Act [18 USC 793 text]. Steven Rosen and Keith Weissman, previously with the American Israel Public Affairs Committee (AIPAC) [advocacy website], are charged with conspiring to convey classified US intelligence to the Israeli government [JURIST report]. Tuesday's decision affirmed a ruling of the US District Court for the Eastern District of Virginia [official website] that the defendant's would be allowed to use certain classified materials in their defense under the Classified Information Procedures Act (CIPA) [text].

The district court ruled in 2006 that the prosecution must show the defendants "had bad faith purposes" [AP report], as well as knowledge that their actions would harm the United States. Rosen and Weissman had earlier challenged the constitutionality [JURIST report] of the Espionage Act, which has been construed ever more narrowly since it was first passed during World War I.

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Pakistan Supreme Court bars ex-PM Sharif from elected office
Jake Oresick on February 25, 2009 12:27 PM ET

[JURIST] The Supreme Court of Pakistan [official website] Wednesday upheld a lower court ruling that bars Nawaz Sharif [JURIST news archive], former prime minister and current leader of the opposition Pakistan Muslim League-Nawaz (PML-N) [party website], from holding elected office based on a past criminal conviction for "hijacking". Sharif was convicted of the offense for attempting to divert a plane carrying Army commander Pervez Musharraf during a 1999 coup against Sharif that ultimately succeeded. Sharif said the ruling was retributive [PML-N press release] and that President Asif Ali Zardari [official profile; JURIST news archive] offered him a favorable verdict in exchange for his support of Chief Justice Abdul Hameed Dogar [official website]. Wednesday's decision [Dawn report] also nullified the election of Sharif's brother, Shahbaz Sharif, who had served as the Chief Minister of Punjab since his election last June. The removal of Shahbaz Sharif from office may be viewed as a political power-grab, as Punjab is the most populous and affluent region in Pakistan, and the PML-N holds a sizable plurality over Zardari's Pakistan People's Party (PPP) [party website] in its provincial assembly.

The Supreme Court's controversial ruling comes amid much turmoil regarding the country's judiciary, which has split the PML-N and PPP, which formerly were coalition partners [JURIST report]. Sharif and the PML-N have urged the restoration of Chief Justice Iftikhar Mohammad Chaudhry [JURIST news archive], ousted after then-president Pervez Musharraf declared emergency rule in November 2007. Chaudhry, supported by many members of Pakistan's bar, insists he is still chief justice [JURIST report] under the Pakistani constitution [text].

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Liberia ex-president may go free due to budget constraints on war crimes court
Kayleigh Shebs on February 25, 2009 12:07 PM ET

[JURIST] Special Court for Sierra Leone (SCSL) [official website; JURIST news archive] prosecutor Stephen Rapp [official profile] has told Reuters that lack of court funds due to the global economic downturn may require the release of former Liberian President Charles Taylor [case materials; JURIST news archive]. The SCSL has charged Taylor with 11 counts [indictment, PDF] of crimes against humanity for his involvement in the Revolutionary United Front, a rebel organization allegedly responsible for the murder of Sierra Leone citizens. The SCSL's budget comes entirely from individual donations, and it expects a shortfall [Reuters report] of close to five million dollars. Without sufficient funding, the judges in the case may be forced [Guardian report] to release Taylor from custody. Should he be set free, the indictments would stand, leaving open the possibility for further legal action.

Earlier this month, officials had announced [JURIST report] that they expected the court to render a verdict by 2010, despite the SCSL's ongoing financial troubles. After complaints [JURIST report] of prejudice in 2007, the SCSL increased Taylor's defense funding [JURIST report] to $100,000 a month. Taylor claims to be indigent, but critics argue [JURIST report] that he has millions of dollars hidden in African banks.

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Khadr lawyers denied client access amid ethics investigation
Caitlin Price on February 25, 2009 11:55 AM ET

[JURIST] Lawyers for Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive] were blocked from attending a scheduled Tuesday meeting with Khadr at Guantanamo Bay [JURIST news archive]. Officials have launched an investigation into the ethics of the defense team, and Navy Lt. Cmdr. Bill Kuebler [JURIST news archive], a military lawyer for Khadr, e-mailed media outlets to state that the investigation was prompted by his own criticism of lead defense counsel Air Force Col. Peter Masciola. Kuebler accused Masciola of having a disqualifying conflict of interest after Masciola allegedly implied that Khadr should face an additional civil trial, contradicting the position of the defense team that Khadr should return to Canada for rehabilitation. Deputy defense lawyer Michael Berrigan denied [Toronto Star report] that any such conflict of interest exists, and the entire defense team declined to discuss the specifics of the investigation. Officials confirmed that an investigation is underway but did not give further details. Also Tuesday, Canadian Foreign Affairs Minister Lawrence Cannon announced that Canada will not seek Khadr's return [Globe and Mail report] and will await the outcome of the US proceedings before making further decisions regarding Khadr.

The military commission proceedings against Khadr are currently suspended [order, PDF; JURIST report] until May at the behest of US President Barack Obama. Earlier this month, Khadr's defense team presented a plan to return him [JURIST report] to Canada, a proposal supported by opposition members [open letter, PDF] of the Canadian House of Commons. Khadr has admitted to throwing a hand grenade [JURIST report] that killed a US soldier in Afghanistan, and was charged [charge sheet, PDF; JURIST report] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.

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Spain agrees to accept Guantanamo detainees
Ximena Marinero on February 25, 2009 11:08 AM ET

[JURIST] Spain's Minister of Foreign Affairs Miguel Angel Moratinos [official profile] on Tuesday indicated his country's willingness to accept Guantanamo detainees [JURIST news archive] during his meeting with US Secretary of State Hillary Clinton [official profile; BBC profile] in Washington DC. No specific details were set out during the meeting, and Moratinos told Spanish media [El Pais report, in Spanish; Cadena SER radio interview, in Spanish] that the legal implications of each detainee's case will have be considered. Moratinos also stated that Spanish commitment to Afghanistan will continue, but declined to discuss the nature of the nation's future role.

Earlier this month, the European Parliament [official website] voted 542-55, with 51 abstentions, to adopt a resolution [materials; JURIST report] encouraging member states to accept low-risk Guantanamo prisoners who cannot be returned to their country of origin for fear of persecution. In January, EU Secretary General Javier Solana [official profile] stated that accepting such detainees may be conditioned [JURIST report] on the US conducting background checks to ensure that they will not be a danger to the host country.

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Google seeks to join European Commission antitrust case against Microsoft
Caitlin Price on February 25, 2009 10:38 AM ET

[JURIST] Internet search company Google, Inc. [corporate website] will apply to join a European Commission (EC) [official website] antitrust proceeding against Microsoft [corporate website], accusing the software giant of hindering competition, according to a message from Google Vice President Sundar Pichai [text] posted to the company's official blog Tuesday. On January 17, the EC confirmed that it sent a Statement of Objections (SO) [EC press release] to Microsoft, preliminarily concluding that by tying its Internet Explorer web browser to the Windows operating system, Microsoft "provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match," thus undermining competition in violation of an EC Treaty provision on the abuse of a dominant position [Article 82 text]. Microsoft responded [press release] that it is committed to operating "in full compliance with European law" and indicated that it is "studying" the confidential SO. Pichai said that Google seeks to join the proceedings because

Google believes that the browser market is still largely uncompetitive, which holds back innovation for users. This is because Internet Explorer is tied to Microsoft's dominant computer operating system, giving it an unfair advantage over other browsers. Compare this to the mobile market, where Microsoft cannot tie Internet Explorer to a dominant operating system, and its browser therefore has a much lower usage. The value of competition for users (even in the limited form we see today) is clear: tabbed browsing, faster downloads, private browsing features, and more. Even greater competition will drive more innovation within browsers themselves - as well as in web design, enabling sites to load faster and offer new kinds of interactive tools and applications.

Finally, we believe that we can contribute to this debate. We learned a lot from launching our own Google Chrome browser last year and are hoping that Google's perspective will be useful as the European Commission evaluates remedies to improve the user experience and offer consumers real choices. Of course creating a remedy that helps solve one problem without creating other unintended consequences isn't easy - but the more voices there are in the conversation the greater the chances of success.
The SO allows Microsoft eight weeks to reply to the allegations in writing or to request an oral hearing. If the preliminary views of the SO are confirmed, the EC may require that Microsoft cease its infringement and may assess a fine.

The SO is based on legal principles confirmed in a 2004 European Commission action [JURIST report; EC materials] against Microsoft that directed the company to unbundle its media player from its Windows operating system. That landmark ruling required Microsoft to share technical information with competitors and lower its prices, but Microsoft failed to comply with the judgment and the EC assessed a record fine [press release; JURIST report] of 899 million euros ($1.3 billion). Last May, Microsoft filed an appeal [JURIST report] with the European Court of First Instance [official website], seeking to annul the fine. In response to the European decision and other judgments, Microsoft has instituted an Antitrust Compliance Committee [official website]. Last June, China announced an anti-monopoly investigation [JURIST report] of Microsoft for allegedly dominating the Chinese software market, unfairly raising prices, and bundling software.

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Colombia president denies ordering government agents to spy on judges, opponents
Safiya Boucaud on February 25, 2009 10:06 AM ET

[JURIST] Colombian president Alvaro Uribe [official profile, in Spanish] on Monday denied ordering Department of Administrative Security (DAS) [official website, in Spanish] agents to conduct wiretaps on politicians, judges and journalists. Journalists from the Colombian magazine Semana [official website, in Spanish] were the first to publish the allegations, and have stated that certain recordings have already been destroyed. Some fear that remaining tapes may get into the hands of criminal organizations, including drug traffickers, paramilitary groups, or guerrillas. Also Monday, the headquarters of the DAS was searched in an attempt to discover who may have ordered and used the information obtained from the illegal wiretaps. Several top DAS officials have resigned due to the scandal, and two more deputy directors left the agency [AP report] on Tuesday.

This scandal is not the first to link Uribe with illegal wiretapping. Last year, Uribe and his administration were cleared of similar allegations [JURIST report] after claiming they were unaware of a plan to record journalists, opposition members, and government officials, and that they did not use the resulting transcripts. In March 2007, Colombian authorities arrested Jorge Noguera [CIP backgrounder], a former intelligence chief heading the DAS, on charges of murder and conspiracy for allegedly contracting with illegal paramilitary groups to assassinate political opponents, including human rights activists [JURIST reports] and union leaders. He resigned [BBC report] in October 2005 after he was taped while discussing plans to sell DAS intelligence data to paramilitary groups.

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UK Justice Secretary vetoes release of Cabinet discussions on Iraq
Lucas Tanglen on February 25, 2009 9:31 AM ET

[JURIST] British Justice Secretary Jack Straw [official profile] on Tuesday vetoed [materials] a British Information Tribunal [official website] order [JURIST report] for the release of redacted minutes of two Cabinet [official website] discussions from the months prior to the invasion of Iraq [JURIST news archive]. Straw declared [statement of reasons, PDF] that the public interest in keeping Cabinet meetings secret outweighed the benefits of disclosure:

Serious and controversial decisions must be taken with free, frank – even blunt – deliberation between colleagues. Dialogue must be fearless. Ministers must have the confidence to challenge each other in private. They must ensure that decisions have been properly thought through, sounding out all possibilities before committing themselves to a course of action. They must not feel inhibited from advancing opinions that may be unpopular or controversial. They must not be deflected from expressing dissent by the fear that they may be held personally to account for views that are later cast aside. Discussions of this nature will not however take place without a private space in which thoughts can be voiced without fear of reprisal, or publicity.
Straw mentioned several other justifications for the veto, citing substantial policy discussions of an "exceptionally serious" issue which "attracted exceptional media coverage." Critics [Herald report] noted a potential conflict of interest, as Straw supported the invasion and was serving as Foreign Secretary at the time of the meetings.

The veto is the first of its kind under Britain's Freedom of Information Act [text], which took effect [JURIST report] in January 2005, four years after its passage by Parliament. At the time, critics complained about broad exceptions that might prevent the release of highly sought-after documents, including many relating to the war in Iraq.

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Rights group urges Guatemala to approve civil war search commission
Ximena Marinero on February 25, 2009 8:34 AM ET

[JURIST] Amnesty International (AI) on Wednesday urged the Guatemalan Congress [official website, in Spanish] to approve a law establishing a National Search Commission for the Persons Forcibly and Involuntarily Disappeared. The proposed legislation [text, PDF, in Spanish] was presented to the Guatemalan Congress in January 2007, and was an important part of a 1999 report [text] by the Commission for Historical Clarification. Prompted by the Peace Accords of 1996 [text], the report stated that 200,000 people were disappeared during the 30-year internal conflict [GlobalSecurity backgrounder]. AI's Americas Deputy Director Kerrie Howard commented [press release]:

The Historical Clarification Commission’s report was a massive landmark for human rights in Guatemala. Now it is time for the government to deliver some justice.
Also included in the report were recommendations to make amends to the survivors and victim's families.

Earlier this month, the director of Guatemala's National Compensation Program (PNR) announced that the government has filed [JURIST report] more than 3,000 criminal complaints for human rights violations committed during the internal armed conflict on behalf of 5000 victims. There remains a backlog of 98,000 civilian complaints, and 1,000 were made in 2008.

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France court reverses terrorism convictions of former Guantanamo detainees
Lucas Tanglen on February 25, 2009 8:13 AM ET

[JURIST] A Paris appeals court on Tuesday overturned the 2007 terrorism convictions of five French citizens who had been questioned by French officials while detained at Guantanamo Bay [JURIST news archive]. The court held that counter-terrorism agents from the French national security service DST [official website, in French] could not gather intelligence and conduct a criminal investigation at the same time. The defendants, Brahim Yadel, Mourad Benchellali, Nizar Sassi, Khaled ben Mustapha and Redouane Khalid, had been convicted [JURIST report] of "criminal association with a terrorist enterprise" and sentenced to one year in prison. Prosecutors plan to appeal [AP report] the ruling to France's Court of Cassation [official website, in French].

The court's ruling had been postponed in January, after US President Barack Obama ordered the closure of the Guantanamo detention center [JURIST reports]. France charged the defendants [JURIST report] in April 2006, and during their original September 2006 trial, the judge refused to deliver a verdict [JURIST report], explaining that he wanted to know more about the intelligence-gathering mission in which agents interviewed the men at Guantanamo. The French government at first failed to disclose the meetings [JURIST report], which came to light during the retrial [JURIST report] when a French diplomatic telegram published in the Liberation daily referred to at least two such interviews.

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Obama urges regulatory reform in economic revitalization speech
Andrew Gilmore on February 25, 2009 7:21 AM ET

[JURIST] US President Barack Obama [official profile] urged sweeping reform of the American financial regulatory system in a speech [text] on his economic revitalization plan to a joint session of Congress Tuesday night. His address, which came less than a week after he signed into law [JURIST report] the $787 billion American Recovery and Reinvestment Act (ARRA) [materials], focused on job creation, tax cuts, and funding for education and public works. Obama asked Congress:

...to join me in doing whatever proves necessary. Because we cannot consign our nation to an open-ended recession, and to ensure that a crisis of this magnitude never happens again, I ask Congress to move quickly on legislation that will finally reform our outdated regulatory system. It is time to put in place tough, new common-sense rules of the road so that our financial market rewards drive and innovation, and punishes short-cuts and abuse.
Obama also outlined an aggressive plan to restart consumer lending and free up the troubled credit markets, and outlined the creation of a special fund to make more consumer, auto, and student loans available to the public.

The ARRA, intended to stimulate and grow the US economy, came under Congressional scrutiny in the US Senate earlier this month with the amendment of its "Buy American" clause [JURIST report] requiring that all goods used in construction projects, particularly iron and steel, must be manufactured in the US in order to receive stimulus funding. The provision was revised to clarify that the law will be applied consistently with US obligations under international trade agreements. Many countries, including Canada, were pleased [Reuters report] with the Senate's move to define the provision, but international industry groups like the European steel confederation Eurofer [official website] believe they did not go far enough [press release] to resolve global concerns [JURIST report] about protectionism. Obama has already distanced himself from the "Buy American" provision, saying in an interview [transcript] earlier this month, "That is a potential source of trade wars that we can't afford at a time when trade is sinking all across the globe."

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For more legal news check the Paper Chase Archive...


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

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